Abor­tion laws may save Roe v. Wade

Baltimore Sun Sunday - - COMMENTARY - By So­nia Suter

Alabama’s his­toric ban of abor­tion from the on­set of preg­nancy has jolted the pub­lic and high­lighted the fragility of re­pro­duc­tive rights. This law comes on the heels of “heart­beat” statutes passed this year in Ohio, Ken­tucky, Mis­sis­sippi, Ge­or­gia, Louisiana and Mis­souri, and un­der con­sid­er­a­tion in nu­mer­ous other states. These statutes earned their ti­tle be­cause they out­law abor­tion at six to eight weeks, when the “fe­tal heart” sup­pos­edly be­gins to beat. In fact, at that stage, there is no fe­tus, let alone a beat­ing heart — only an em­bryo with a clus­ter of vi­brat­ing cells.

Mo­ti­vated by an un­abashed de­sire to over­turn Roe v. Wade, the spon­sors of these laws are bet­ting that Jus­tice Brett Ka­vanaugh’s re­cent con­fir­ma­tion to the Supreme Court will up­end nearly 50 years of prece­dent. I think they are wrong.

In fact, I find a ray of hope in the ex­tremes of abor­tion bans like Alabama’s and Mis­souri’s, with no ex­cep­tions for rape or in­cest, or Ge­or­gia’s, with its am­bi­gu­ity about whether women can be pros­e­cuted for their abor­tions. Un­til now, the pro-life strat­egy has been cau­tious and in­cre­men­tal.

Af­ter Roe was de­cided, pro-life states passed laws try­ing to over­turn the de­ci­sion. Those ef­forts failed, but they re­sulted in Planned Par­ent­hood v. Casey, which en­abled the grad­ual chip­ping away of re­pro­duc­tive rights. Casey may have up­held the “es­sen­tial hold­ing” of Roe, but it dra­mat­i­cally al­tered the con­sti­tu­tional test for abor­tion laws. Re­plac­ing Roe’s dif­fi­cult strict scru­tiny test with a looser and vaguer test that merely re­quires abor­tion laws not to im­pose an “un­due bur­den,” Casey em­bold­ened states to en­act abor­tion re­stric­tions that “pro­tect” women. Many states passed laws to pre­vent “hasty” or “un­in­formed” abor­tion de­ci­sions by re­quir­ing women to wait 24, 48 or some­times 72 hours; by man­dat­ing ul­tra­sounds be­fore abor­tions; and by re­quir­ing dis­clo­sure of in­ac­cu­rate or im­bal­anced in­for­ma­tion to dis­suade women from abor­tion. Other laws im­pose tar­geted re­stric­tions on abor­tion providers or clin­ics al­legedly to pro­tect ma­ter­nal health. In fact, they offer no ben­e­fits and only bur­den women seek­ing abor­tions. While not bla­tantly vi­o­lat­ing Roe, these laws have dra­mat­i­cally re­duced the num­ber of abor­tion providers in many states. To­gether with wait­ing pe­ri­ods and ul­tra­sound re­quire­ments, they make it ex­tremely dif­fi­cult, if not im­pos­si­ble, for women, es­pe­cially poor and ru­ral women, to ac­cess abor­tions in many states.

These lat­est abor­tion laws, how­ever, rep­re­sent an en­tirely new strat­egy. Alabama’s ban does not pre­tend to pro­tect women. In­stead, in out­law­ing abor­tion out­right, with no rape or in­cest ex­cep­tion, its sole fo­cus is pre­serv­ing pre­na­tal life. That has al­ways been the goal. But be­fore, it was cloaked in the sheep’s cloth­ing of ma­ter­nal health, which made it hard for mod­er­ate Amer­i­cans to con­demn such laws. Who could chal­lenge ef­forts to en­sure that abor­tion providers are “wellqual­i­fied” or that abor­tion de­ci­sions are “well-con­sid­ered”?

The re­cent abor­tion bans, in con­trast, lay bare the true mo­ti­va­tion and cru­elty be­hind a move­ment that priv­i­leges em­bry­onic cells above the wel­fare of women. By so bla­tantly vi­o­lat­ing Roe, they also con­tra­vene the views of most Amer­i­cans, 73 per­cent of whom op­pose over­turn­ing Roe v. Wade, and 58 per­cent of whom sup­port abor­tion in all or most in­stances. These laws have gal­va­nized not only the left, but also mod­er­ate in­de­pen­dents and Repub­li­cans, to fight for re­pro­duc­tive rights in a way that in­cre­men­tal ero­sion of abor­tion rights never could.

But what about the newly con­ser­va­tive Supreme Court? Be­cause Chief Jus­tice John Roberts is an in­sti­tu­tion­al­ist who wants to pre­serve the le­git­i­macy of the Supreme Court — es­pe­cially af­ter the highly con­tentious Ka­vanaugh con­fir­ma­tion — he can­not be ea­ger for the court to con­sider the con­sti­tu­tion­al­ity of statutes like Alabama’s, nor is he likely to up­hold them. These statutes thumb their noses at prece­dent that has stood for nearly half a cen­tury, has been reaf­firmed and is sup­ported by a strong ma­jor­ity. Af­ter the lower courts in­evitably deem these early abor­tion bans un­con­sti­tu­tional, it is highly un­likely the court will re­view these statutes, which would leave them per­ma­nently blocked. This was ev­i­dent in the court’s com­pro­mise Tues­day, when jus­tices up­held an In­di­ana law re­quir­ing burial or cre­ma­tion of fe­tal re­mains, but re­fused to con­sider an ap­peal seek­ing to re­in­state a law ban­ning abor­tions on the ba­sis of sex or fe­tal dis­abil­ity.

Be­cause the lat­est laws have awak­ened the pub­lic to the pre­car­i­ous­ness of re­pro­duc­tive rights, any Supreme Court abor­tion de­ci­sion, even one that does not di­rectly threaten will be more po­lit­i­cally fraught than ever.

So­nia Suter ([email protected]) is the John and Inge Stafford Fac­ulty Re­search Pro­fes­sor at the Ge­orge Wash­ing­ton Uni­ver­sity Law School.

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