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.
Pingback: Under no circumstances
Pingback: Just Between Strangers
Pingback: feminist blogs
Pingback: http://www.divinestsense.com/blog
Pingback: Tennessee Guerilla Women
Pingback: The Headpiece for the Staff of Ra
I think also helpful would be a map like the one you posted detailing current conditions, where a red state would be one with no abortion providers and a pink state would be less than some small number, like 3 or 5. It would be interesting to see how those two maps compare, because, last I heard, some states had none and other had very few.
this is a very depressing post.
not least because I can’t say that you’re wrong.
the fist closes ever tighter . . .
I’m so, so disappointed in Rhode Island.
But then, Rhode Island politicians are rather famously susceptible to corruption, so perhaps some bribery is in order.
[Post deleted by Amp]
along these lines, i have heard (on NPR) that justice ginsberg criticized the roe v. wade decision for precisely that reason: she presciently saw that a blanket statement upholding a woman’s right to an abortion makes it more a matter for federal law than for state law, thus (as you describe) preventing pro-choice states from legalizing abortion on their own.
looks like she was right. how very disappointing and strange that the very decision upholding the right becomes an instrument for dismantling the right.
1. Depressing post, but Amp is probably right.
2. How did Tennessee become white? Isn’t that the one state where marital rape is still legal? (I hope I am mistaken about that.)
3. Slightly off topic, but can someone tall me why abortion clinics are even neccessary in pure-white states? I recently helped a realitive get an appointment at an abortion clinic in a semi-emergency situation: She thought she was about two months pregnant, and her personal ethical system / comfort zone would only allow her to use the abortion pill as a method. She needed a next day appointment. I thought, “Thank God (or whomever) that we are in San Francisco.” But the nearest next day appointment was in Walnut City – across the Bay Bridge and a hour’s drive in what turned out to be a heavy rain. So why couldn’t she just have gone to her regular gynocologist? Sure, if I still lived in North Carolina, I would completely understand the need for a clinic: No one there could successfully practice gynocology if it were known they performed abortions. But is that seriously a concern in San Francisco?
Amp – I know technically I’m not supposed to post here so delete if you must. I only wanted to comment that Laurence Tribe today in his Altio confirmation testimony seems to agree with your theory:
Ohhh, Goddess. I’d completely forgotten about the Salemo standard. And has it ocurred to anybody that under the afore-mentioned standard a state legislature could pass a total abortion ban while Roe is in effect and legally enforce it until the nearest court manages to take a look at it (yes, they’re bound to follow precedent, but they’re not exactly quick about these things, are they?); a pro-life judge may deliberately take his own sweet time on the matter; and an anti-choice state government might follow the court schedule closely and have a new, identical ban ready to go into effect by the time the first one is declared unconstitutional?
And Decnavda, I’d imagine it’s the presence of zealous anti’s, as much as or more than the general cultural climate, that makes clinics necessary. California, liberal as it may be in many ways, does have them.
“NOTE: This comments thread is for feminist, pro-feminist, and feminist-friendly posters only. If you suspect you wouldn’t fit into Amp’s conception of “feminist, pro-feminist, or feminist-friendly,” then please don’t contribute to the comments following this post.”
What if you’re strongly pro-choice but somewhat anti-feminist (in their current manifestation)?
Then please don’t post on this thread again.
Keep in mind that you can always revive one of the past discussions on this subject if you want to post something – for instance, this post on the prospect of nationwide abortion laws, or this post on the Salerno standard. I don’t even mind if you refer to this post, as long as you don’t post in it.
In the future, I might try doing an experimental “pro-choice only” thread. We’ll see how it goes.
Pingback: Alas, a blog » Blog Archive » Even with Alito, reproductive rights are not doomed
O.K. Fair enough.
I’m dubious about the validity of this map. Michigan and Delaware are highly likely to ban abortion? I haven’t been able to find the original article with the methodology, but it comes from the Alan Guttmacher Institue, a think tank whose stated goal is to “protect the reproductive choices of all women and men in the United States and throughout the world.” The “research” produced by ideological think tanks should be regarded as guilty until proven innocent even if the ideology is correct. AGI clearly fits the bill.
Unless Justice Kennedy is much friendlier to women’s rights than I think he is, I think women will be better off if Roe is overturned than if the Supreme Court keeps it around in name but guts it in fact. If Roe is overturned, the religious right won’t be satisfied with anything other than a total ban, and an attempt to impose such a ban would produce a pretty serious voter backlash.
This map makes me want to curl up in a corner and cry. *sigh* I live firmly in the middle of all that red and know, without a doubt, that my state would outlaw abortion completely if it were possible. I also happen to have a health condition that makes pregnancy dangerous for me, although it may not actually kill me. It could well leave me damaged, with long-term organ injury and incapable of actually caring for my child, but probably won’t kill me. Which means, to the oh-so-wise people in my state that any fetus I happen to conceive would outweigh my needs and I would just be damned. Without federal protection, there will be some truely horrific anti-abortion laws passed. Around here, the theory goes that health exceptions are too vague and could be exploited, so it’s better not to have them.
I don’t know anything about Delaware, but I do live in Michigan, and am quite sure the map is accurate so far as that goes. The NARAL “Report Card” gives Michigan an “F” rating for state abortion laws (we’re tied with Mississippi and Arkansas; only Pennsylvania, Kentucky, Louisiana, and North Dakota have more onerous restrictions) are worse. The pre-Roe abortion ban has never been repealed (so will remain on the books to re-activate if Roe is ever overturned). Both houses of the state legislature are controlled by the anti-abortion Republicans heavily influenced by the Religious Right in Western Michigan and by Michigan Right to Life.
I have a question. I am interested in what might change one’s stance on abortion rights. Is there anyone who was previously pro-choice that is now pro-life? Or is there anyone who is now pro-life who was raised in a pro-choice household?
If anyone has a personal story about what made them change positions, I would love to get their feedback.
Thanks.
Jonathan Rowe
Jonathan, here’s my story, for what it’s worth.
Pingback: Alas, a blog » Blog Archive » Gonzales vs Carhart: The Biggest Threat Is Buried Deep In The Decision
Pingback: Smite Me! [.net] » Blog Archive » Say it with me: Justice Alito