Over on Pandagon, Amanda writes:
Via PZ, the likely outcome after Roe vs. Wade is overturned. I’ve written before about this, but it is really astonishing sometimes to really take a step back and look at how much of the country loathes and resents women who want our basic liberty.
It’s been the pet theory for many on the left that women’s rights aren’t really under threat, because the Republicans can’t afford to ban abortion and therefore lose the rallying point of their base. I think there’s some evidence for this, but it’s clear now that the Repubs are going to throw the base this bone and hope that the anti-contraception/anti-gay rallying keeps them going strong.
I’m convinced that this isn’t the way things are going to go. Roe is not going to be overturned. Abortion rights will not revert to the states. And the results will probably be worse than what Amanda is expecting.
If the Republicans get a new, more anti-legal-abortion Supreme Court (and I think they will), they won’t choose to overturn Roe. Instead, the process of whittling Roe down – already well begun by the Casey decision – will be put into overdrive.
Here’s three changes I’d expect to see (not the only three, by any means).
- The remade Court will discover that “partial birth” abortion bans that aren’t limited to late term abortions, or indeed to identifiable specific medical procedures, and that provide no exceptions for cases in which a pregnancy has put a woman’s health in jeopardy, are Constitutional after all. The Federal Partial-Birth Abortion Ban will become the law of the land.
- Now that anti-abortion laws no longer have to make exceptions to protect women’s health, a bunch of of the standard laws will be passed in new versions that lack the health exception. (For instance, parental notification).
- The Court will decide to apply the Salerno standard to abortion laws. What would this mean? Right now, if a state passes a new abortion law – for example, a law saying that before getting an abortion a woman has to pay for and take a six-week class in moral responsibility taught by her local anti-abortion “crisis” center – someone (probably Planned Parenthood or the ACLU) sues, and the state is not allowed to enforce that law until after the courts have determined if it’s Constitutional or not.
With the Salerno standard, however, that law will be in effect until it is found unconstitutional – a process that could take many years. Furthermore, the same law would have to be sued many times; for instance, even if the law was found to create an “undue burden” on someone who lives 120 miles away from the nearest “crisis center,” that would just overturn the law for women in that particular situation. Women who couldn’t afford the crisis center would have to sue separately on those grounds; women whose job schedules wouldn’t permit a six-week class would have to sue separately on those grounds; and so on.
But maybe after ten years and six lawsuits, the new “moral responsibility class” law would have finally have been overturned. No problem – the legislature would just pass some other ridiculous anti-abortion law, and the process begins anew. The Salerno standard would make it possible for Republicans to ban abortion through a series of dubiously Constitutional laws creating barriers between women and reproductive rights.
Without overturning Roe, they will attempt to pass new laws that will make it in practice impossible for many or most women to get abortions. And most of these laws will be “stealth” abortion bans, laws designed to seem moderate or reasonable on the surface (and therefore protecting Republican congressfolks from voter backlash) while actually banning a wide range of abortion procedures. (The Federal “partial birth” abortion (PBA) ban is a classic example of a “stealth” ban; they marketed it as applying only to a single uncommon procedure performed post-viability, but the PBA ban’s text could cover a wide range of procedures, mostly pre-viability).
And if the Republicans continue to control Congress, many of those laws will happen at the federal level, meaning that even abortion-rights meccas like New York state will be subject to the new regulations. Contrary to what many people say, the destruction of Roe (whether it’s actually overturned, as Amanda expects, or instead whittled down to a shell, as I expect) will not mean it’ll be up to the individual states to decide.
When was the last time you heard any powerful Republican object to the federal “partial-birth” abortion ban on federalist grounds – that is, on the grounds of the (alleged) conservative belief that such decisions should be left to the states? By passing the Federal PBA ban, the Republicans have made it clear that they consider abortion to be a matter for Federal law, not for federalism. New York, California, Oregon, and the other white-colored states on the map above are not safe.
For this reason, it’s essential that pro-choicers stop talking about Roe being overturned as if that’s the only worse-case scenario. As long as voters believe that Roe not being overturned means that reproductive rights are protected, pro-lifers will be able to hide behind Roe‘s existence while quietly ripping practical reproductive rights to shreds.