2 Ways To Skin A Precedent

For those of you who don’t read the long, boring articles, let me briefly summarize why Alito’s elevation to the court will be extremely bad for reproductive rights, with links to some more detailed arguments. There are two viable possibilities, and both lead to exactly the same place. And for both outcomes, it is important to remember this fact, which is too often forgotten: abortion bans are always enforced in a grossly arbitrary and inequitable manner (cf. not only the pre-Roe period but the sky-high abortion rates in Latin America.) Affluent women, who have the resources to travel and the connections to know which doctors perform grey market abortions, will have access to safe abortions irrespective of the legal regime. The question is whether this access will be given to all women, or whether some classes of women will have to resort to illegal abortions. Once we understand this, the implications of Alito’s elevation are clear:

• Overturning Roe directly. Alito could very well join Justices Scalia and Thomas and vote to overturn Roe v. Wade directly, which would be consistent with his explicit claims that the Constitution does not protect reproductive rights. The effects of this would be abortion bans in 15-30 states, 17 of which would go into effect automatically and immediately. (Amanda has a handy chart demonstrating the effects.) It would also make abortion a major federal issue. Arguments to the contrary tend to focus on the fact that abortion bans are generally unpopular, which might be relevant if the United States were governed by initiatives with full turnout. But in the system of government we actually have, the state has considerable autonomy from public opinion, and the fact that abortion bans matter most to the women with the least political power tends to skew legislative outcomes in a heavily anti-choice direction. (And this can be easily seen by that fact that on the day Roe was decided abortion was criminalized in 46 states although public opinion on abortion was virtually identical.)

• Dismantling Roe While Leaving the Nominal Precedent as a Potemkin Village. We cannot be certain that Alito would vote to overturn Roe, and in addition he probably doesn’t have 4 other votes to do so now (although, of course, this could easily change in the near future.) Alternatively he may choose to emulate Chief Justice Rehnquist’s initial strategy: completely gut Roe while not explicitly overturning it. What we do know from his Casey dissent, however, is that he would give states extremely wide latitude to pass regulations that individually fall short of an outright ban. (Also instructive is the fact that he sees the state as having a similar interest in regulating children and married adult women.) His logic would also seem to endorse the new argument that abortion regulations are only facially invalid if they do not have any legal application. But since most abortion regulations have no effect on affluent women in stable families, this would mean that these regulatory obstacle courses would remain on the books, and performing abortions would be an extremely expensive, difficult, and litigation-intensive process. States can easily use creative regulations to have de facto bans on abortion.

In other words, whether or not Alito would actually vote to overturn Roe per se is fundamentally beside the point. The effects of what we know he will do–allow states to make access to abortion very difficult while simultaneously making it much more difficult to challenge these regulations in court–and overturning Roe are virtually identical. In either outcome, safe legal abortions will become the almost exclusive privilege of affluent women, while women who need them the most will be largely denied access. Particularly since Alito is replacing O’Connor–who was the fifth vote for giving the “undue burden” standard any teeth at all–the importance for women’s reproductive freedom of keeping him off the Court can scarcely be overstated.

Make sure to check out all the great Blog For Choice posts.