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Monday, November 21, 2005

"Still Standing"?

Jeffrey Toobin has a long essay, "Still Standing:  The Resilience of Roe v. Wade," in the Nov. 28 issue of The New Yorker.  (Thanks to Howard Bashman for the link).  A quick reaction:  It has often seemed to me that, in the public conversation about abortion rights, participants tend to underestimate, or even to ignore, the extent to which Casey rejects -- while purporting to "re-affirm the central holding of" -- Roe.  Perhaps the best evidence, then, of Roe's resilience is the extent to which the discussion about judicial nominations tends to focus on Roe, notwithstanding Casey?

Posted by Rick Garnett on November 21, 2005 at 09:02 PM | Permalink


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I agree with Prof. Lederman's assessment that Casey kept some central pieces of Roe, notwithstanding the changes it announced.

Further, look not just as the legal framework, but at the nuts and bolts of what restrictions are allowed or disallowed. If one believed Casey's statements about Roe being "too strict" in scrutiny, and about shifting the balance back toward State regulation, AND toward allowing the scale to shift even more so later in a pregnancy -- then one might think that limits to a late-term abortion would be the easiest to pass muster. But see Stenberg v. Carhart. And recall that the case not only struck down about 20 states' laws, but that (a) such laws were typically supported by supermajorities, including otherwise pro-choice Dems, and (b) such restrictions did not even limit a single abortion, but only said "do abortions at week 23 by this method rather than that."

If THAT doesn't cut it, then it's hard to see where States have more room.

To be sure, Casey did OK waiting periods (and parental consent, but that had been OKd [with bypass] even under Roe). But it's debatable whether they do much more than make a statement. Some would have us believe that they make the procedure much harder to come by, but in many States they seem to do little (and sometimes the earlier "visit" can be by phone or recording or whatever).

So, I'd say that Casey ended up not only closer to Roe, as Kennedy's shocked dissent in Stenberg shows, but in some ways, it's outdone Roe, as again, Stenberg shows.

And add to that the oft-overlooked "companion" case that came out the same day as Stenberg -- Hill v. Colorado. Hill endorsed limiting abortion protests in a way that, c'mon, never would have been approved if the law targeted a different content based on that content -- say, animal rights protests at labs.

And pre-Casey, Roe's validity was hotly debated in the academy and legal profession, as well as in the populace. Now, much of the academy has declared questioning Roe as "outside the mainstream." In the weird world of judicial confirmations, even those who have labored long to overrule Roe now pretend that their favorite nominees might not overrule it after all! And they might even be right, for all I know.

That, to me, says that Roe, post-Casey, is more secure than it was just pre-Casey. Maybe it's just from passage of time, and not from Casey itself, but Roe seems to me to be on firmer footing than it was just pre-Casey. After all, unless a surprise vacancy happens, the anti-Roe forces need to (a) hope that Alito gets on AND that both he and Roberts are anti-Roe votes, then (b) hope for a Stevens suprise or win ANOTHER presidential election, and then (c) get ANOTHER nominee through. Compare that to just pre-Casey, when the nose-counting seemed to doom Roe -- and, as Blackmun's papers proved, it was gone until Kennedy's flip.

So maybe Roe will go, but there's till a long way to go.

Posted by: just me | Nov 21, 2005 11:13:54 PM

Well, Rick, I suppose that depends on what one thinks the "central holding" of Roe is. The most important holding, of course -- "central" or otherwise -- is that the right to choose an abortion is constitutionally protected, such that women can in fact obtain first-trimester (and, where necessary, second-trimester) abortions in every state (assuming, of course, a provider doing business within the state). Most observers thought that basic holding was in grave jeopardy in Casey -- as did Justice Blackmun, even after oral argument.

Casey also reaffirms the extremely important holding that abortion restrictions short of prohibition can be *facially* invalidated if they impose too onerous a burden on a "large number" of women. To be sure, Casey tightens up the test somewhat from where Roe had left it -- but it reaffirms the critically important power of plaintiffs to bring facial challenges so that *some* restrictions can be invalidated wholesale, without the need for (untenable) case-by-case individualized challenges by numerous pregnant women who would each have to demonstrate -- during an extremely condensed timeframe -- that the restriction imposed an undue burden *in her case.*

The second holding, respecting facial challenges, is up for grabs in this Term's Ayotte case -- a case that is, for that reason, of extreme importance: It provides a vehicle for the opponents of Roe and Casey to dramatically undermine a central holding of those cases without having to announce to the world that Roe (or even Casey) is overruled.

Posted by: Marty Lederman | Nov 21, 2005 10:07:08 PM

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