Monday, February 28, 2005

Living in a Roe-less World

There was an interesting column in The New York Times yesterday about what the abortion law landscape might look like if Roe v. Wade became a thing of the past. Critics (pro-choice included) of Roe correctly point out that a reversal would not make abortion illegal in the United States, it would only return the issue to the states. The question brought up by the column is what would the status be of state laws regulating abortion that were invalidated by Roe but were never actually repealed (a similar situation exists with segregation laws that are invalid after Brown v. Board of Education but nonetheless remain on the books)? Would they spring back to life as if Roe never existed or would they need to be reauthorized by the state legislature? If they did rise from the dead, would prosecutors actually use them without a fresh statute? My gut tells me that they would spring back to life but probably wouldn't be implemented without lots and lots of litigation, and maybe not even then without some serious political backing.

For more cogent thoughts than my WVU-trained brain can produce, see this post (including comments) over at The Volokh Conspiracy.

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