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Romney's dream of a post-Roe America

The Romney campaign is opening up about its new ad aimed at reassuring women voters that his policies on abortion and contraception would not be as extreme

The Romney campaign is opening up about its new ad aimed at reassuring women voters that his policies on abortion and contraception would not be as extreme as they've been led to believe. Romney strategists tell the New York Times their goal is to keep President Obama's lead among women in the low single digits. They decided to release the new commercial this week in hopes it will have maximum impact with late-deciding voters. 

The ad seeks to make Mr. Romney's stated position on abortion rights sound moderate. "In fact, he [Romney] thinks abortion should be an option in cases of rape, incest or to save a mother’s life,”  says the ad's star, Romney campaign volunteer Sara Minto of Ohio. 

Romney's record on abortion is a long and winding road.

William Saletan from Slate mapped the whole thing with a pretty definitive history back in August. This year, Mr. Romney's campaign has said the candidate believes abortion should be banned except in cases of rape or incest or if it's needed to save a woman's life, though as recently as last month, Mr. Romney himself put forth a slightly different position which his campaign later clarified. But one thing Mitt Romney has been very clear about this election year is that he wants to see Roe v. Wade overturned.

Michelle Goldberg argues at the Daily Beast that Romney's commitment to ending Roe explains why anti-abortion conservatives haven't gotten their hackles up over the campaign's more moderate tone on abortion and contraceptives this week. "[S]ocial conservatives are willing to tolerate their candidate’s current feint toward the center ... because the possibility of finally getting rid of Roe is so tantalizingly close," she writes. 

The New York Times editorial board sees the potential overturn of Roe v. Wade as a real enough possibility that it took time to ponder a post-Roe America on Tuesday. 

"Women desperate to end a pregnancy would find a way to do so. ... Women lacking the resources would either be forced by the government and politicians to go through with an unwanted or risky pregnancy, attempt to self-abort or turn to an illegal — and potentially unsafe — provider for help. Women’s health, privacy and equality would suffer. Some women would die."

Amy Davidson at the New Yorker took the thought experiment one step further -- taking Mr. Romney at his word that he'd allow abortion rights for rape and incest victims and women whose lives were at risk, and wondering aloud how laws like that would be enforced. Who would decide, for instance, if a woman's life was enough at risk to make her eligible for a life-saving abortion?

"[W]ould a woman need to prove that the risk to her life—never mind to her health—was over a certain per cent, say, seventy-five? Which bureaucrats would decide who got access to this medical procedure?"

This might be less a theoretical question than an historic one. Before Roe v. Wade established a woman's right to an abortion, the procedure was generally allowed if the pregnancy posed a serious risk to a woman's health. But somebody had to decide who was eligible and who was not; whose abortion was necessary and whose was not. In the 1940s and '50s, hospitals created review committees to serve as a check on doctors' judgments about when a woman should be allowed to have an abortion.  A woman seeking a legal, therapeutic abortion had to get a doctor's approval and then the doctor had to get the hospital committee's approval. Leslie Reagan writes about this process in her book, When Abortion was a Crime: Women, Medicine, and Law in the United States, 1867-1973

"Probably more important than refusing to authorize therapeutic abortion in specific cases, committees discouraged physicians from seeking approval for abortions. Requiring physicians to commit their medical judgment regarding pregnancy and abortion to writing and then submit supportive arguments based on strict medical indications to a committee for review eliminated some cases immediately. The surveillance itself indicated distrust of physicians and distaste for the procedure. ... Moreover, abortion committees discouraged women from seeking therapeutic abortions. ... Consciously built into the review process were procedures that could be expected to embarrass women patients. Women might have to endure both physical examinations and verbal questioning from several doctors before receiving a therapeutic abortion. This policy was justified, in the minds of some, because some women tried to 'abuse' the law and obtain therapeutic abortions for nonmedical reasons. The University of Virginia Hospital's abortion board reviewed cases with psychiatric indications by having each of the board's three members interview the woman, compare notes, and then decide her fate. Women whose cases might pass muster might prefer to avoid this trying process." 

In one very famous case in 1962, an Arizona woman named Sherri Chessen was advised by her doctor to have an abortion. She had taken Thalidomide during her pregnancy, not knowing that it could cause serious birth defects. Her abortion was approved by a local hospital board and the procedure had already been scheduled when her story became public and the hospital board essentially revoked its permission and cancelled her surgery. Chessen ultimately had to travel to Sweden for the procedure. In 1966 she recounted her story at an abortion rights conference in San Francisco in a speech that is reprinted in the book Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling

Naturally the thought came to me that if I'd obtained Thalidomide it was conceivable that others had done so. ... It was this concern that made me pick up the telephone the next morning -- it was Sunday -- and call Ed Murray who is the editor of the Arizona paper. ... He wasn't home but I spoke with Mrs. Murray and she agreed that some warning should indeed be published and asked me if their medical reporter, who was preparing an article on Thalidomide, could phone me. I said yes if he wouldn't use my name and she assured me that he would not. So I agreed. Well, the paper kept their promise, but rather than merely an article warning of the drug, the front-page, black-bordered story screamed in bold print: "Baby-deforming drug may cost woman her child here." Well that did it. The story went out on the wire and before the day was two hours along it stirred international interest. London was debating the Thalidomide problem, and here were examples of what their drug was doing in what to them, I am sure, was the remotest corner of the United States. Well, bathed in the merciless glare of national publicity, the doctors cancelled the operation. From this point on they put me in a little hospital bed, and when everybody asks me when did you decide to do this and when did you decide to petition the court, I can truthfully say that I didn't do much deciding. All I did was a lot of arguing as to why I couldn't get out of there, but to no avail. The surgery, they felt at that point, could be challenged by any citizen. Anyone could have gone to the prosecuting attorney and the doctor, the hospital and myself could face criminal prosecution ... So the hospital board and the doctors and lawyers and everyone conferred. They felt that existing laws were so vague -- what did 'life' mean in the term 'necessary to save the life of the mother'? They decided that go gain judicial clarity the hospital would petition the Supreme Court of Arizona for a declaratory judgment prior to doing this. That's when our names became a matter of the court -- and thus public -- record, as we were swept from there into a ridiculous maelstrom of newsprint. The case was dismissed in court without a hearing. ... Now we faced a blank wall in the United States because of the publicity. 

Abortion rights advocates often talk figuratively about anti-abortion policies inviting politicians and bureaucrats into your doctor's office. If Roe v. Wade is overturned and Mitt Romney's preferred policy is established -- allowing abortion only for rape and incest victims and women whose lives are in danger -- there still won't actually be politicians in the doctor's office, but there may very well be lawyers and bureaucrats. Because if it's not up to women and doctors anymore, somebody will have decide who qualifies for abortion rights and who does not.