The immediate danger to abortion rights isn't that Roe will be overturned

An interesting article on Women’s E News argues that, once Justice Roberts joins the court, Justice Kennedy will become the most important abortion rights vote – the one that other justices will have to sway. Kennedy has been pro-Roe in recent years, but he was with the 4-5 minority that voted to allow states to ban vaguely-defined “partial birth” abortions, even when they were necessary to preserve a women’s health.

At the end, E News touches briefly – far too briefly – on the most important legal challenge to abortion rights facing the Supreme Court:

Also to be reviewed [by the Court later this year] is the basis upon which women’s advocates may challenge anti-choice laws, an important issue for keeping open the courthouse doors when burdensome restrictions are passed.

I wish they had spent more time discussing this. If the Court decides to apply “the Salerno standard” to abortion cases, it will become ten times harder for pro-choice organizations to fight new abortion bans and restrictions in the courts. Even an obviously unconstitutional abortion ban might remain good law for many years while court cases drag on, enabling pro-lifers to effectively ban abortion in far more cases than they currently can.

This is what Jack Balkin was referring to when he wrote “Courts now enjoin new abortion laws as soon as they are passed if they burden some women’s right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar.”

It may be a mistake that so many pro-choicers, when discussing the Supreme Court and abortion, are talking about the future of Roe and Casey. Until Justice Kennedy radically changed his views, or Ginsberg or Stephens unexpectedly retires, Roe is safe – but that doesn’t mean that practical access to abortion is being upheld by the Court. The much more immediate danger is that no one has any idea how Kennedy or Roberts will vote on applying the Salerno standard to abortion cases.

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4 Responses to The immediate danger to abortion rights isn't that Roe will be overturned

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    then again, maybe not says:

    Amp, good point! Roe is such an important and recognizable symbol for the right to choose, but it’s these other issues that have been stripping away a woman’s right to safe, legal and accessible abortion.

    But then we end up back a few months ago talking about framing. How do we get people to understand the immediate danger when it’s “a little more complicated?”

  3. 3
    Sara says:

    Framing this stuff is really hard, because people are so focused on Roe. It’s a good reminder that ideally, abortion rights would not be a judicial issue. As long as it stays in the hands of SCOTUS, we’ll be constantly fighting these battles, one step forward and two steps back.

    The right wing plans long-term and I think we should too. What about a 10-year plan to get a constitutional amendement re: right to privacy on abortion and birth control…kinda like the ERA. A girl can dream, can’t she? Then Roe would be taken off the table, and when we talk about “facial challenges” it will mean pimples, not my reproductive fate.

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