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Reader Feedback: Alito and Abortion Edition

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Commenter (and blogger) Bean raises some interesting points with respect to this post. I’ll respond to each point separately:

First, while I agree that the current iteration of abortion law is important because it can ensure that poor women have access to abortion, it hasn’t done that. Because of the Hyde Amendment, many poor women do not have access to this important right. Further, there are abortion providers in only 13% of U.S. counties and it is often poor women who cannot take 1 or 2 days off from work to procure the abortion they desire (sometimes more in states with waiting periods). They can’t afford the time off and can’t afford childcare for the children they already have. So while I agree with you on the meta point, I think it’s at best a half-empty promise right now.

It is certainly true that, particularly in light of Harris v. McRae (which upheld the Hyde Amendment), the regime created by Roe has been suboptimal in terms of creating abortion access. It is also true that virtually all of the regulations upheld under Casey affect poor women more than rich women (which is one reason that a loosely interpreted “undue burden” standard could be used to effectively used to deny access to abortion. On the other hand, despite all this, Roe really has made a difference in abortion access for poor women compared to 1973. Private clinics can 1)advertise and 2)offer sliding scales, and this does provide significant (although far, far from ideal) access to poor women that they wouldn’t have without the “negative” right. The crucial question is the whether the Court will do something to stop states from harassing and shutting down abortion clinics. In its current form, obviously it won’t, so a lot depends on getting as few bad laws (and precedents) as possible in the meantime.

Another thing to add is that the problem geographic disparities in access is, on some level, one that law is limited in its capacity to solve (although it would be nice if it didn’t make things worse.) And I should also take this opportunity to recommend Melody Rose’s book.

Second, I’m not nearly as optimistic as you are about Alito. I think you may be right about Roberts, but given Alito’s previous abortion jurisprudence, I am not so sure he would vote to uphold Casey. I don’t think he’s as conservative (little c) as one might hope. Maybe you have some more insight into his stance that I am missing and that you can share? Either way, Roberts has talked a big game about this so it would be interesting as a test for him.

I’ve discussed my views about what Alito is likely to do here and here (as well as in discussions of his nomination passim.) I agree with Bean that Alito would, if it came to that, provide a fifth vote to overturn Roe and Casey, although I doubt he would author an opinion urging it as Scalia has done. He will certainly vote to uphold every abortion regulation that comes to the Court. Perhaps more importantly, I don’t think simply stripping all protections from the “undue burden” standard is an optimistic scenario — quite the opposite. If the Court is going to stop protecting reproductive freedom it would be better if it is done openly, preferably with Scalia writing the lead opinion denouncing the Court for having previously signed on to the “baby-killing agenda.” That Roberts–like Rehnquist–may be savvy enough to understand this is my fear, not my hope.

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