WHY THE "PARTIAL BIRTH" CASE MATTERS: AN ANTI-REPRODUCTIVE FREEDOM PERSPECTIVE. Hadley Arkes, one of the pro-life movement's most prominent intellectuals, has an article in First Things about the upcoming "partial birth" abortion decision. It starts off strangely, with the claim that "people on both sides seriously expect the Court will use its decision to overturn Roe v. Wade." My question -- such as who? I read as much as I can on the subject, and I certainly haven't encountered anyone saying this. The "people" adduced here would seem to be comparable to the extensive list of Castro lovers in academia and the media that Tailgunner Glenn Reynolds claims to have.

What many pro-choicers have argued is that the partial-birth case can be used to water Casey's "undue burden" standard down to pretty much nothing. And where Arkes's essay is useful (in addition to previewing the highly unconvincing ad hoc justifications that will be trotted out if Clarence Thomas makes the unprincipled decision to uphold the statute on federalism grounds) is its confirmation of the pro-life strategy of covertly destroying Roe's underpinnings:

...if Roberts and Alito help simply to overturn that prior decision on partial-birth abortion, my own judgment is that the regime of Roe will have come to its end, even if Roe itself is not explicitly overruled. What the Court would be saying in effect is, "We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion."...That would invite a flood of measures enacted by the states.

And, of course, this is the whole point of the phony "partial birth" controversy; it's the second part of a pincer movement against Casey. On the one hand, by reading the "undue burden" standard as upholding measures (such as mandatory waiting periods) that limit abortion access in a highly inequitable way, the Court has permitted significant "burdens" on a woman's right to choose. On the other hand, if the Court sustains legislation with no connection whatsoever to any legitimate state interest -- legislation that doesn't protect fetal life, or woman's health, but simply places health risks on women for exercising their constitutional rights -- then the "undue" prong of the test is reduced to nothing. Hence, Casey is largely stripped on content, but in a way that will fly largely below the public's radar. This is a win/win/win for the Republican Party: access to abortion is heavily restricted for poor people, abortion access for women like John McCain's daughter will be preserved, and all of this is done with little political damage and the political benefits of a symbolic victory for their base.

The other interesting thing is that while Arkes would like Roe to be overturned through the back door, he seems to think that the Court will duck the case: "The voters who have backed two Bushes and Reagan, expecting something dramatically different, may discover once again that the judicial world is fixed in a mold that will persistently break their hearts." I certainly hope that he's right about this, but I don't think that he is.

--Scott Lemieux

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