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Abortion rights are at risk state by state with Republicans in charge, according to a new mailing from a super PAC affiliated with Planned Parenthood.
The mailer, which targets female voters in Richmond and Northern Virginia, says presidential candidate Mitt Romney and U.S. Senate candidate George Allen would "overturn Roe v. Wade."
That would "allow states to end safe, legal abortion even in cases of rape, incest or when a woman's life is at risk," the ad says.
Romney and Allen have both gone on record as opposed to abortion except in cases of rape, incest and when necessary to save the mother’s life.
But this mailer didn’t claim they opposed abortion in all cases. Instead, it said the end of Roe vs. Wade would allow states to pass such blanket bans. Justices ruled in the 1973 case that a woman has a qualified constitutional right to terminate her pregnancy. Nearly 40 years later, that means states can’t enforce laws that represent an "undue burden" on women seeking an abortion.
We wondered, would Romney and Allen overturn Roe vs. Wade? And would that allow states to end abortion?
Romney and Allen on ‘Roe’
First we’ve got to state the obvious: neither a president nor a senator can overturn a Supreme Court decision.
But a president could appoint a justice interested in revisiting the issues raised in Roe, and a senator could vote to confirm such an nominee. (The New York Times and Atlantic, among others, have written about the 2012 election’s possible effect on the makeup of the court.)
If a spot opened on the aging court, does that reflect what Romney and Allen have said they would do? Essentially, yes.
Romney’s ever-shifting stances on abortion can be tough to pin down — the same week this mailer emerged, he said there wasn’t any antiabortion legislation on his agenda, then his spokeswoman said that of course he would support such legislation.
(And when he ran for office in liberal Massachusetts, he said he supported a "woman's right to choose.")
But on the question of Roe vs. Wade, his campaign website is clear. He wants it overturned:
"Mitt believes that life begins at conception and wishes that the laws of our nation reflected that view. But while the nation remains so divided, he believes that the right next step is for the Supreme Court to overturn Roe v. Wade – a case of blatant judicial activism that took a decision that should be left to the people and placed it in the hands of unelected judges. With Roe overturned, states will be empowered through the democratic process to determine their own abortion laws and not have them dictated by judicial mandate."
He also said on Meet the Press on Sept. 9, 2012, that he would "appoint justices for the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe v. Wade and therefore they return to the people and their elected representatives the decisions with regards to this important issue."
His website says his "commitment to protecting innocent human life is firm" and that he opposes abortion "except in the rare cases where the pregnancy was caused by rape or incest, and when necessary to save the life of the mother." It doesn’t mention Roe vs. Wade.
Planned Parenthood pointed us to his 2003 vote against the Harkin Amendment, which asked U.S. senators to affirm that the decision "should not be overturned."
Meanwhile, his website argues that "his record on life issues is strong," noting that it earned him a 100 percent rating from the National Right to Life Committee when he was in the Senate, among other accomplishments.
Allen’s campaign didn’t respond to our request to confirm whether he’s interested in an overturn of Roe, but the evidence is strong he would vote to confirm an anti-Roe nominee for the court if given the opportunity.
A new Supreme Court justice
Still, there’s no guarantee Romney would have a chance to replace a justice who supports Roe.
Justices Stephen Breyer and Ruth Bader Ginsburg are in their 70s, but wouldn’t voluntarily step aside under a Republican president, say court-watchers such as ScotusBlog publisher Tom Goldstein and CNN legal analyst Jeffrey Toobin.
There’s no guarantee that Allen would be part of a Senate majority that would vote to confirm an anti-Roe justice. The chamber is up for grabs in the election, with more than 50 seats needed for a majority. We can say a win for Allen would put Republicans closer to overtaking the Senate: Virginia, a tossup state, is voting to replace retiring Democrat Jim Webb.
There’s also no guarantee a newly reshuffled court would push to fully overturn Roe, returning the issue to states — though there’s no shortage of predictions it would, including from Toobin. But even the current court’s take on Roe vs. Wade hasn’t been well tested.
"We don't know enough, because we haven't had much in the way of abortion cases since (Chief Justice John) Roberts and (Samuel) Alito joined the court," said Goldstein, who has argued 25 cases before the court. "... We don't know if the court is currently ready or would be ready with one more vote to overturn it."
More likely, perhaps, would be a reinterpretation of "undue burden" that was far more narrow, allowing a wider range of state restrictions on abortion.
States after ‘Roe’
But let’s assume, for the sake of argument, Romney gets to nominate an anti-Roe justice, Allen votes along with a majority of fellow senators to confirm that nomination, and a more conservative court picks a case that allows it to completely overturn Roe vs. Wade.
Would that "allow states to end safe, legal abortion even in cases of rape, incest or when a woman's life is at risk"?
Well, yes, but that’s unlikely to be the most common result.
New limits on abortion, however, would be likely.
The Center for Reproductive Rights found in 2004 that 30 states "were poised to criminalize abortion soon after a Roe reversal."
The Guttmacher Institute, which works to "advance sexual and reproductive health and rights," keeps an updated fact-sheet called, "Abortion Policy in the Absence of Roe."
This month, it showed that 20 states already have laws that could be used to restrict the legal status of abortion, from those that automatically ban abortion if Roe were overturned to laws that express intent to restrict the right to legal abortion "to the maximum extent permitted" by the court.
But seven states have laws that protect the right to choose abortion "prior to viability or when necessary to protect the life or health of the woman."
"A categorical ban, I think, would be quite rare," Goldstein said.
Still, an overturned Roe would theoretically "allow" states to ban abortion without exceptions for rape, incest or the life of the mother, as the Planned Parenthood ad claims — whether they actually implemented such laws or not.
So, let’s reprise the "ifs":
• If Romney and Allen win and
• If Romney gets the chance to replace a liberal justice and
• If Allen and other senators confirm a justice who supports overturning Roe and
• If that new justice creates a majority on the court willing to revisit Roe and
• If there’s an appropriate case for the Supreme Court to review and
• If the court decides to fully overturn Roe, returning abortion regulations to the states
Then a state legislature could vote to "end safe, legal abortion even in cases of rape, incest or when a woman's life is at risk."
A Planned Parenthood mailer in Virginia claims that "(Mitt) Romney and (George) Allen would overturn Roe v. Wade and allow states to end safe, legal abortion even in cases of rape, incest or when a woman's life is at risk." A president and a senator don’t have the power to directly overturn a Supreme Court decision, but they could nominate and vote for an anti-Roe justice if a spot opened.
Meanwhile, there’s no guarantee that a reshuffled court would fully overturn the decision, as opposed to further limiting a woman’s right to choose, but preserving protection in cases of rape, incest or risk to a woman's life. The ad says Romney and Allen "would." We suppose they would if they could — but whether they could is substantially more speculative than the ad suggests. We rate the ad’s claim Half True.
Planned Parenthood Votes, "It’s Personal," accessed Oct. 10, 2012
CNN's PoliticalTicker, "Planned Parenthood continues anti-Romney mail push in Virginia," Oct. 10, 2012
Email interview with Justine Sessions, director of advocacy media, Planned Parenthood Federation of America, Planned Parenthood Action Fund, Oct. 10, 2012
Interview with Tom Goldstein, publisher of ScotusBlog, Oct. 11, 2012
Email interview with Robert Terra, Romney campaign, Oct. 10, 2012
Cornell University Law School Legal Information Institute, "Roe v. Wade," Jan. 22, 2973
Washington Post, "Romney: No abortion legislation on his agenda," Oct. 9, 2012
PolitiFact Flip-O-Meter, "On abortion," May 15, 2012
PolitiFact, "Obama ad says Romney opposed abortion, even in cases of rape and incest," July 25, 2012
FactCheck.org, "Twisting Romney’s Abortion Stance," July 9, 2012
MittRomney.com, Issues: Abortion, accessed Oct. 10, 2012
National Review, "My Pro-Life Pledge," June 18, 2011
Transcripts on Meet the Press, "September 9: Mitt Romney, Ann Romney, Julian Castro, Peggy Noonan, E.J. Dionne, Bill Bennett, Chuck Todd," Sept. 9, 2012
George Allen for U.S. Senate, "Virginia Values for Washington," accessed Oct. 10, 2012
Senate.gov, Harkin Amdt. No. 260, Roll Call Vote 48, March 12, 2003
Atlantic, "Swing Vote: How the Election Could Tip the Balance of the Supreme Court," Feb. 23, 2012
New York Times, "Future of an Aging Court Raises Stakes of Presidential Vote," June 27, 2012
MSNBC, "What else is at stake in the election? The Supreme Court," Oct. 1, 2012
Guttmacher Institute, "Abortion Policy in the Absence of Roe," Oct. 1, 2012
American Spectator, "Does Roe Still Matter?" Jan. 25, 2012
Time, "CNN's Jeffrey Toobin on the Conservative Court," Sept. 18, 2007
Center for Reproductive Rights, "What If Roe Fell - 2007," June 1, 2007
Atlantic, "The Day After Roe," June 2006
New Yorker, "Still Standing: The resilience of Roe v. Wade," Nov. 28, 2005, via ScotusBlog
New York Times, "Battle for the Senate," accessed Oct. 19, 2012
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