The Two Pernicious Myths About Overturning Roe Vs. Wade

 

Those who favor the Supreme Court overturning Roe vs. Wade are trying to justify their actions with a couple of myths. Ruth Marcus explodes those myths in this excellent op-ed in The Washington Post:

Two pernicious myths about abortion rights have emerged in the wake of the leak of a draft Supreme Court opinion that would overrule Roe v. Wade. Together, they illustrate how intractable the abortion debate is — and how extreme.

The first myth — demonstrably laughable — is that eliminating constitutional protection for abortion rights would remove this contentious issue from courts and leave decisions to the democratic process, where it should have been all along.

The second — far more dangerous — is that abortion opponents would be satisfied with such an outcome, and the consequent national patchwork of access to abortion. They wouldn’t. Getting rid of Roe is just the start. For those who believe that abortion is the taking of a human life, allowing it to remain legal in wide swaths of the country is intolerable.

Let’s start with the fallacy that, as Justice Samuel A. Alito Jr. argued in the leaked draft, overruling Roe would “return the issue of abortion to the people’s elected representatives.”

Alluring as this may sound, it won’t happen. As Harvard Law School professor Richard Fallon wrote in a 2007 law review article, “The notion that by overruling Roe the Supreme Court could extract itself from controversial assessments of the constitutionality of state antiabortion legislation is not just a fallacy. It is a delusion.”

If anything, overruling Roe would expand court involvement by inviting action in state courts, testing the scope of what is protected under state constitutions. This isn’t imaginary: In Michigan, Democratic Gov. Gretchen Whitmer recently asked her state’s Supreme Court to preemptively address the question.

Meanwhile, federal courts, no matter how much they might want to get out of the business of deciding abortion cases, would face complex questions of constitutional law. Under Alito’s draft, abortion restrictions must only have a “rational basis” to pass constitutional muster. Permissive as this is, it will still present questions: Would it be rational for a state to prioritize fetal life over the life of the mother? Does protecting the fetus takes priority over serious risk to maternal health? Is it rational for a state to prohibit contraceptive methods, such as intrauterine devices or morning-after pills, which prevent implantation of a fertilized embryo? Can a state prohibit in vitro fertilization because it involves the destruction of such embryos?

Again, these are not far-fetched hypotheticals. Louisiana lawmakers are weighing a measure that would “ensure the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings.” This language could transform IUDs or discarding embryos created for IVF into homicide cases.

That’s just the start. Life without Roe introduces uncharted legal questions that law professors David S. Cohen, Greer Donley and Rachel Rebouché describe as “a novel world of complicated, interjurisdictional legal conflicts over abortion,” pitting state against state.

The rise of telemedicine and the availability of abortion-inducing medication — which now accounts for more than half of all abortions — mean that abortion is increasingly untethered from physical clinics and state borders. Do states that prohibit abortion have the power to prevent their citizens from obtaining abortions elsewhere, or to punish them if they do?

What happens if a woman takes abortion medication in a state where that is legal but expels the fetus in a state that prohibits abortion? Could states seek to punish out-of-state doctors who prescribe medication abortions — or, alternatively, shield in-state physicians from being held to account by states where abortion is illegal? State laws in this area would raise unresolved questions about the constitutional right to travel, the reach of the commerce clause, and the extent of extraterritorial jurisdiction — issues that make deciding what constitutes an “undue burden” on abortion rights simple by comparison.

If the legal questions will be unending, so, too, will be the efforts to end access to abortion, whether through the courts or the legislative process. For all of Alito’s paeans to the democratic process and Republican lawmakers’ efforts to present themselves as “compassionate, consensus builders” seeking only state “flexibility” to adopt “reasonable restrictions,” abortion opponents will not stop until it is outlawed nationwide. Why should they, if they believe that abortion is tantamount to murder?

Marjorie Dannenfelser, president of the antiabortion Susan B. Anthony List, told The Post that she has spoken with 10 potential GOP presidential candidates, most of whom “assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.”

Senate Minority Leader Mitch McConnell (R-Ky.) has not ruled out the possibility of a nationwide abortion ban but said he wouldn’t change filibuster rules to let that happen. Still, Sen. Joni Ernst (R-Iowa) plans to introduce legislation that would prohibit abortion after six weeks, The Post reported.

That’s not the only route to a nationwide ban. The other leads back to the courts, with the assertion that not only does the Constitution not contain a right to abortion, but that it also affirmatively protects the rights of the fetus. The 14th Amendment bars states from depriving “any person of life” without due process of law or denying “to any person … the equal protection of the laws.” Endorsing such fetal “personhood” — a position rejected in Roe — would mean that the Constitution requires states to prohibit abortion.

Conservative scholars John M. Finnis and Robert P. George pressed this argument in a friend-of-the-court brief in the Mississippi abortion casenow before the court, contending that “prohibitions of elective abortions” are “constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.” If corporations are persons under the 14th Amendment, they argue, surely that status applies even more obviously to “unborn children.”

Don’t be fooled. The abortion fight is not about democracy — it’s about denying choice.