AFTER ROE? Jessie...

AFTER ROE? Jessie Hill has an interesting three-part series about potentially overturning Roe at PrawfsBlawg. [HT: Volokh Conspiracy.] The long version of what I have to say on the issue can be found in my article last summer in TAP here and my reply to Benjamin Wittes-type "letting Roe go will be good for reproductive freedom" arguments here. To give the short version:

  • The starting point for any discussion for the consequences of changing abortion law, I think, has to be the law on the ground, not the law in the books. The pre-Roe status quo ante was not that no women could get abortions, but because of arbitrary enforcement patterns affluent women had access to safe abortions and other women did not. What is at stake in abortion rights is whether poor women will have access to safe abortions.
  • I think Hill is correct that Roe is safe for now -- there are still five votes on the record for affirming it. Even if Republicans get another appointment to replace Stevens or Ginsburg, my guess is that Alito and (especially) Roberts would prefer not to formally overturn Roe, at least right away, but would rather simply empty Casey's "undue burden" standard of any content. However, in some ways this is the wrong question to ask, since for advocates of reproductive freedom this is the worst of all worlds--it would be much better if Roe were directly overturned than if states were allowed to create the pre-Roe status quo ante through the back door. Keeping Roe as (to use Rehnquist's phrase against his approach) a Potemkin precedent while removing any bite the "undue burden" standard has gets most of the policy benefit while denying the Democratic Party the political benefits of overruling Roe.
  • The question of what would happen to laws still on the books is an interesting one. I can't believe that there would be any problems at all if there was a trigger passed by the legislature, and it's also hard to believe that a Court that would overturn Roe would prevent states from enforcing laws on the books (particularly since getting into questions of application would raise many difficult questions for advocates of criminalized abortion.)

It's also important not to focus too much on the precise wording of statutes or exactly how exceptions are worded; these distinctions have very little effect in practice. Whether the statute is an outright ban or delegates the decision to panels of doctors, the effect tends to be abortion-on-demand for well-connected affluent women and severely restricted access for women who aren't either way.

--Scott Lemieux

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