Big Media Scott

A follow-up article to my previous one about Alito and Casey is up at TAP online. Since I don’t think the class aspects of the plan of conservatives to incrementally dismantle Roe while–to use Rehnquist’s metaphor for the forces of good–leaving its hallow facade as a Potemkin Village of moderation has received enough attention, I’d like to highlight this passage:

What is particularly objectionable is the effect this method of regulating abortion would have on poor women and women in rural areas. American abortion law has always entailed hypocrisy and inequity; before Roe, even in states where abortion was formally banned, doctors performed a significant number of safe abortions in hospitals. Women from affluent families could get access to safe abortions, while less advantaged women were consigned to back-alley butchers. Most of the regulations currently permitted by Casey have the same effects. Regulations such as waiting periods and parental involvement requirements have far more restrictive effects on poor women and women in abusive families than on middle-class women in stable families. Perversely, adopting the Salerno standard would make these inequitable effects an argument in favor of the constitutionality of such regulations.

The best thing to come from Roe–although it was somewhat inadvertent–was the fact that it extended the de facto standards of law that obtained for affluent women and extended them to all women. The state could no longer wink at grey market abortions while keeping formal bans as an omnipresent threat against doctors who performed abortions on the wrong kind of women or promoted their services to actively. Casey has watered this down, but as long as statutes can be facially challenged and the undue burden standard has at least some teeth, it’s a tolerable compromise. The road that the Bush Administration is trying with Ayotte–to take the teeth out of the “undue burden” standard and make doctors vulnerable to prosecution while simultaneously making it far more difficult and expensive and time-consuming to challenge regulations in court–would essentially see a return the pre-Roe status quo ante, making safe abortions the province of women in affluent, well-connected families. This would be a completely indefensible outcome achieved through a dishonest and dishonorable process, and there ‘s no serious question that Alito would go along with it.

The other thing to mention is that having heard oral arguments–the article was essentially written before–I’m more optimistic about the possibility that Ayotte will be disposed of before Alito gets a chance to vote in a re-hearing. The most likely outcome–reading a health exemtpion into the statute–can be reconciled with Casey, and while it would plant the seeds of a move toward making facial challenges, it doesn’t seem likely that Roberts has 5 votes for anything concrete. But the planted seed is bad enough, and remember that O’Connor is gone, Ginsburg is a 72-year old cancer survivor, Souter is 66, and Stevens is 85. Even if disaster is avoided this time, it ain’t over, and the project to slowly destroy Roe isn’t going away.

…More on the incrementalist strategy from Liza Sabater.