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The Road To (Arbitrarily) Criminalizing Abortion Starts Here

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2CA and 9CA ruled yesterday that the federal “Partial Birth Abortion Act” is unconstitutional. Under existing precedent, this is black-letter law and these were not the first courts to rule that the statute was unenforceable, so that’s not surprising. The problem is that with Alito ascending to the Court the relevant precedent is almost certainly doomed. Stenberg v. Carhart was a 5-4 decision with O’Connor in the majority. In addition to his general and consistent hostility to reproductive rights, in the specific case of Carhart Alito filed a concurrence to make clear that he had no choice but to strike down a similar state law because the precedent “compel[led]” the result. If the Court hears the appeals to these cases–which I would bet on–Carhart will be overturned and the federal statute upheld.

Some Chamberlain-at-Munich pro-choicers believe that this isn’t a big deal. I believe that this position is sorely mistaken. Such an outcome will almost certainly result in the utter gutting of Roe and Casey, even if their hollowed-out shells nominally remain good law. In addition to signaling that the feds are welcome to step in to the abortion-regulation field (and to think that this statute will be struck on federalism grounds is dreaming in technicolor; if Scalia is willing to be a completely unprincipled hack because of medical marijuana, he’s sure not going to strike an abortion statute), there would be other bad consequences:

  • Bye-bye Health Exemption: Carhart struck down Nebraska’s “partial birth” statute, even as applied to post-viability abortions, because it lacked an exemption for doctors protecting the health of the mother. This requirement, first developed in Roe, is absolutely critical to preserving abortion access. Because of the health exemption, competent doctors can operate with the confidence that they are unlikely to be arrested, and can act according to their best judgment. It is because of the health exemption that most of the regulations tolerated by Casey–while certainly excerable public policy–have had only a modest impact on access to abortion. If regulations without a health exemption are upheld, however, that’s a completely different issue. The states and the federal government will be able to place doctors in serious legal jeopardy, and this will have profound effects on the availability of safe, legal abortion services. Upholding the federal statute–which deliberately declined to include a heath exemption–would remove any teeth from Casey‘s “undue burden” standard. If you can ban some abortions altogether without a health exemption, why would a health exemption be required merely for parental notification? Overturning Carhart will doom the health exemption, and with it all but bury Roe.
  • Opening the Door Wide Open: As Judge Reinhardt points out, the only abortions the federal statute effectively regulates are previability second-trimester abortions, since virtually all of the tiny fraction of abortions performed post-viability are performed when a mother’s life is potentially at stake. (It is perhaps worth emphasizing this: you will often hear that such bans affect only post-viability abortions. This is erroneous.) And, as Justice Stevens correctly points out, regulations that proscribe particular methods of abortion while not regulating other methods that produce the same result are completely irrational. What will happen if such statutes are upheld, therefore, is obvious. Some legislators, with the help of pro-life activists, are going to see the obvious: “Wait a minute, we can ban pre-viability D&X and D&E abortions, no health exemption. So why can’t we ban pre-viability abortions that use different methods? Perhaps the induced vaginal delivery sounds kind of gross, but from a moral and ethical standpoint there isn’t any difference. The fetus is equally dead no matter what method you use.” And, of course, this argument will have considerable power because it’s obviously correct; to permit abortions at the same stage of fetal development using some methods but not others, although if anything the proscribed methods are safer for the woman, doesn’t make a lick of sense. So, in other words, to borrow Scalia’s phrase the growth of regulations will stop with “partial-birth” bans “only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.”

Far from being a harmless sop to unappeasable anti-choicers, overturning Carhart and upholding the broad, vague and unprincipled federal law would ultimately go most of the way to returning abortion access to the pre-Roe status quo ante. Throwing out the health exemption will permit all kinds of state harassment of the clinics that poor women particularly rely on, and have a chilling effect on their ability to operate. And it will allow many states to put up the kind of obstacle courses that act as de facto bans for poor women. Should the Supreme Court take this case on, the nomination of Alito will be immediately consequential, and will also force me to revise my general belief that Republicans inevitably play cultural reactionaries for suckers. While they’re certainly the junior partner in the Republican coalition, they’ve finally gotten paid off.

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