Next Term’s Special: Filet of Roe

In a highly unsurprising decision, the Supreme Court agreed today to hear an appeal of (at least one of the many) Circuit court opinions striking down the Congressional ban on so-called “partial-birth” abortions. To recapitulate, there are two important questions: how will they rule, and does it matter?

• On the first question, it is virtually certain that the Court will vote to uphold the ban, and in so doing overturn the Court’s decision in Stenberg v. Carhart. (There is no question that the statute is unconstitutional as long as that case controls.) The earlier decision was 5-4 with O’Connor in the majority, and it is virtually certain that Alito will vote to uphold any regulation short of a ban. Only 2 possibilities, both remote, could save the precedent. One is that the ban could be struck down on federalism grounds. I think the chances of this are virtually nil (the court’s liberals have been consistent in upholding federal power, while Scalia and Kennedy have been willing to make outcome-oriented exceptions to Lopez.) The other possibility is that some members of the Court will flip (as effectively happened in Casey) so that a precedent will not be overturned just because of a change in personnel. This is, I think, scarcely more likely. Obviously, Scalia, Thomas and Alito–staunch opponents of Roe itself–are certain votes to uphold the statute and overturn Carhart. Kennedy made his visceral disgust for D&X abortion quite clear in his Carhart dissent (although, as Stevens and Ginsburg pointed out, there was little in the way of a rational argument attached to it); he’s not going anywhere. The last possibility is Roberts voting to uphold in his role as Chief; I suppose that’s unknowable, but I think that’s about as likely as the Royals winning 110 games this year. Carhart is finished.

• The second question is how much this matters. Many people seem to believe that this is a relatively trivial matter, that this is a minor sacrifice to appease the wishy-washy unprincipled middle that won’t matter much in the end. As I have discussed before, I believe this view is profoundly misguided. First, upholding a ban with no health exemption would be the death knell of the last remaining element of Roe‘s relatively robust protection of the right to choose, and would make a particularly toothless version of Casey’s “undue burden” standard (which is already vague enough to permit judges to plausibly uphold virtually any regulation short of a ban anyway) the benchmark for evaluating abortion regulations. This would essentially permit states to regulate their way to a de facto ban on abortion for non-affluent women. Second, while it is true that the “partial birth” bans are empty symbolism that don’t actually prevent any abortions from being performed but just make a few abortions more dangerous, their utter irrationality is precisely the problem: if you can ban one type of abortion procedure on viable fetuses, what logical reason can prevent you from banning another procedure, and then another? There isn’t one. Again, overturning would pretty much remove whatever teeth remain in the “undue burden” test.

I wish I could be more optimistic, but that’s how I see it. As a wise man once said, the re-election of Bush was always going to produce a lot of bad outcomes. This is one of them.

….As Jessica points out, the chilling effect of these laws on doctors is far from trivial.

…Shakes is equally pessimistic.