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More on Roe and the Law

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I have a piece up at the Prospect looking at how abortion law has evolved in the post-Roe period. To expand on a couple points:

  • I wrote a little bit recently about John Hart Ely’s “representation-reinforcement” theory of judicial review.  Ely, of course, is most famous in conservative circles as “eventheliberal John Hart Ely, who thought Roe was wrong.”     The thing is, I think Ely was wrong — Roe does, in fact, fit in very well with the Warren Court’s representation-reinforcement theory.   The Texas law struck down in Roe — like most of the statutes is struck down — was passed before women had the franchise, and women remained grossly underrepresented in state legislatures in 1973 (or, for that matter, 2013.)    Moreover, as with Griswold arbitrary, selective enforcement was a crucial reason why laws that banned abortion were able to stay on the books.    Ely didn’t seem to take discrimination against women as seriously as he took discrimination against African-Americans, but once you get beyond that Roe was very much of a piece with the great Warren Court cases.
  • To respond to some of the discussion here, I could perhaps add a sixth myth: “Republicans have never wanted Roe overturned.”  There is a grain of truth to the myth — the existence of Roe does provide political benefits for some Republicans, and I doubt that reversing Roe v. Wade was a high personal priority for either Reagan or the first Bush.  Nonetheless, to say that Roe was never real danger vastly underestimates the contingency involved. Had Reagan nominated Bork while Republicans still controlled the Senate, Roe would have been overruled by 1992.  And Souter — whose nomination was an odd fluke based on strange politics within the Bush administration — certainly wasn’t appointed because he supported a right to privacy.   Roe‘s survival has involved a lot of luck, and given that internal Republican politics means that there will never be another Souter, this luck is unlikely to continue if a Republican president picks Kennedy’s replacement.
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