August 1, 2005
How They Could Destroy Roe Without Overturning It
By Ampersand, Alas a Blog
There's been a lot of anxious discussion of what might happen if Roe is overturned by the Supreme Court - something that might cause a large pro-choice backlash across the country. Another possibility, however, is that the Court might destroy the right to abortion for most women - and do it without actually overturning Roe, thus remaining relatively "below the radar." Here's how that could work.
The Supreme Court has already agreed to hear a case called Ayotte v. Planned Parenthood of Northern New England. The press usually reports Ayotte as a parental notification case - but that's only part of what's at stake in Ayotte, and it's probably the less important part.
So what else is at stake in Ayotte? In the 1992 case of Planned Parenthood v. Casey, Sandra Day O'Connor created something called "the undue burden standard." Under this standard, if an abortion regulation is likely to be unconstitutional as applied to a significant number of women, then the law itself is unconstitutional.
So, for example, when Congress recently passed a partial-birth abortion ban, pro-choice groups suing to overturn such laws don't need to prove that the law would be unconstitutional as applied to every single woman under every imaginable set of circumstances. The fact that the ban made no provision to protect women's health-meaning that it would be unconstitutional if applied to women who need "partial birth" abortions for health reasons-was enough to cause the law to be blocked entirely.
It seems unlikely—indeed, virtually impossible—that the Court would use Ayotte to overrule Roe. But if the Court reaches the second question and holds that
In short, many of the rights guaranteed women by Roe and Casey could be eviscerated by Ayotte-but in a quiet, technical fashion that would protect the Republican party from voter backlash.
It's by no means inevitable that the
Pro-choicers should follow the Ayotte case closely.
More blogging about Ayotte:
Posted by at August 1, 2005 1:00 PM
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This is truly terrifying...
Posted by: Jessica at August 1, 2005 3:08 PM