ROE WILL NOT BE OVERTURNED----BUT IT MIGHT BE KNEECAPPED

ROE WILL NOT BE OVERTURNED----BUT IT MIGHT BE KNEECAPPED

     Brett Kavanaugh, nominated by Trump to replace retiring Supreme Court Justice Anthony Kennedy, will probably be confirmed, becoming a vote, many believe, to overturn Roe v. Wade. But if the past is a guide to the future it is unlikely that Roe will be ‘overturned’. Instead, the Court’s conservative majority will, vampire like, suck the life out of it.

     The   Roe decision was handed in 1973, and in the ensuing years states opposed to it enacted three kinds of laws.  

    Third party consent statutes   required the pregnant woman gain the consent of the father before having an abortion, or of the parents, if she was underage,  but in Planned Parenthood v. Danforth, an early case,  the Supreme Court struck down a Missouri law of this type.

    Procedural and administrative hurdles imposed by state law on providers of abortion services have also been contested.  For example, in Whole Women’s Health v. Hellerstedt  a sharply divided Supreme Court found in 2016 that a Texas law requiring physicians performing abortions to have admitting privileges at a nearby hospital and abortion clinics to have facilities comparable to ambulatory surgical centers imposed an “undue burden” on women seeking an abortion.  

    The third type of anti-Roe statute involves Disincentives directed at patients, a 2016   Indiana Law Journal piece citing 14 states requiring doctors, as an aspect of informed consent, to warn patients of deleterious psychological consequences, including depression and suicidal ideation, possibly following from an abortion.

     Basically, the prevailing test used by the Supreme Court in terms of whether a state statute violates a woman’s right to an abortion is whether that law imposes an ‘undue burden’ on her opportunity to exercise that right. In the nature of things, ‘undue burden’ is an elastic term. It is probably the case that the more conservative the Justice and the more conservative the Court the less likely it is  that any particular of statute, no matter how restrictive, will be found to impose an ‘undue burden’. In that sense, Roe will probably not be explicitly overturned, rather it might, case-by-case, be made meaningless in more and more states.

     In some states, New York, California, Oregon, Massachusetts, and a dozen or so more, access to legal, medically safe abortions will continue, but in the southern states, some states in the Midwest, and a scattering of others, it will not.

     What is to be done? Other than praying for our sisters in the states likely to be affected?

     Four things.

     First, restrictive state laws will be what is at issue in coming Supreme Court cases. Those restrictive laws get passed by state legislatures, therefore folks on the ground in Alabama and Mississippi and other likely places have to carry the fight to every precinct, hoping to win at least enough seats as to be able to block them from being enacted.

     Second, those of us in states less likely to impacted have to lend support to candidates in what might seem to be obscure, remote races, but those races might have everything to do with whether

a woman in that state has access to a safe, affordable abortion. Those most in need, those most desperate, might not be able to travel to New York or California for an abortion.

     Third, given that the Senate ratifies or rejects the president’s nominee for a seat on the Supreme Court, we must fight tenaciously for control of the senate. If you are in a ‘safe’ state such as New York, with two pro-Roe senators, contribute to the campaigns of pro-Roe candidates in less safe states.

     Fourth, keep the faith but wield a sword. The road is long and the struggle hard. The anti-Roe forces have been at it for more than 40 years. We must be as determined, as relentless, and as convinced, that in the end, we will win.

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