Can We Risk Defending Roe v. Wade?

Last week Rachel Maddow had a very frank discussion with the president of the National Organization for Women, Terry O’Neill, revealing the risks associated with challenging some of the clearly unconstitutional state laws that directly contravene Roe v. Wade.  O’Neill explained that the most significant danger with any court challenge is the potential that the current conservative Supreme Court is now poised to overturn the fundamental abortion rights established under Roe.

Does the reality of the current makeup of the Supreme Court mean that pro-choice groups must continue to play defense instead of offense?

Recently, the Guttmacher Institute reported:

Recent changes in the membership of the U.S. Supreme Court have led some state policymakers to consider the possibility that Roe v. Wade could be overturned and regulation of abortion returned to the states.  Some state legislatures are considering banning abortion under all or virtually all circumstances; these measures are widely viewed as an attempt to provoke a legal challenge to Roe, while other states are considering abortion bans that would go into effect in the event that Roe is overturned.

So, what can pro-choice advocacy organizations do to fight back?  How do we defend against the unconstitutional attacks and attempts to dismantle the very precepts of Roe v. Wade?

Bans on abortion after 20 weeks directly contravene Roe v. Wade.  Nevertheless, such bans are imminent in Alabama, Iowa, and Indiana.  And Oklahoma’s Governor Mary Fallin (R) just signed a 20 week ban into law this past Wednesday, joining Nebraska, Idaho, and Kansas.  The 20 week ban in Nebraska has gone unchallenged since November 2010.  Anti-abortion groups are systematically pushing these laws in states all around the country in the hope that pro-choice groups will react with legal challenges that will then end up in front of the conservative leaning Supreme Court.  These anti-abortion groups are “…lay[ing] the groundwork for the next challenge to Roe v. Wade – a battle they believe they can win.”

This concern about the makeup of the Supreme Court is a reasonable one considering the Court’s decision in Carhart v. Gonzalez (2007), upholding the Federal Abortion Ban.  The swing vote that remains a major concern is that of Justice Anthony Kennedy.  In Carhart, Justice Kennedy stated, “[s]tates … have an interest in forbidding medical procedures which, in the state’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”

Yet, not all reproductive rights advocates believe that Kennedy will be the deciding vote that overturns Roe v. Wade.  Instead, the concern is that the current Court will further burden access to abortion that may not overturn Roe directly but will do enough significant damage to abortion rights that millions of vulnerable women will bear the greatest burden; effectively dismantling abortion rights for these women.

Recent statements from representatives for the Center for Reproductive Rights and the National Women’s Law Center have indicated an unwillingness to challenge these onerous laws due, in part, to the fact that these laws only impact “…a small number of procedures that occur later in the pregnancy.”

Nancy Northrup, president of the Center for Reproductive Rights, recently explained, “[w]e’re focused on pursuing cases that ensure that women have access to all abortion services.  They’re trying to move the agenda to a small percentage of cases, but we’re not fighting on their turf.”

Still others think the Supreme Court “…has absolutely no desire to overturn Roe v. Wade.  In fact, despite all of the anti-choice laws being flung at it…  [some believe]… that these cases could likely reaffirm the ruling, not invalidate it.”

Lawyer Paul Benjamin, an anti-choice activist that has often provided anti-choice groups with legal assistance, recently commented on North Dakota’s proposed complete abortion ban.  Benjamin believes that North Dakota’s Defense of Human Life Act “…did not deserve the support of the pro-life community and was properly tabled.”  And contrary to what many have been warning about Justice Kennedy, Benjamin believes, “…there is no reason to believe that Justice Anthony Kennedy…would vote to uphold a ban on abortions before viability.”  His reasoning is based on the fact that in Carhart, Justice Kennedy, “…acknowledged that the federal Partial-Birth Abortion Ban Act would have been unconstitutional if it had prevented pregnant women from obtaining second-trimester abortions.”  Accordingly, Benjamin believes the anti-abortion movement should not be pushing “…to have Roe reaffirmed yet again…”  He concludes therefore that enacting laws that completely ban abortions, except in the cases to save the life of the mother, are in effect “…an exercise in futility.”

At the other end of the anti-abortion movement, activists are indeed pushing to enact laws that will directly conflict with Roe.  In Louisiana, Rep. John LaBruzzo (R) has introduced House Bill 587 which would establish a complete abortion ban “…designed to take on the 1973 U.S. Supreme Court ruling, Roe v. Wade that made abortion legal in the United States.”  “LaBruzzo said he filed the bill after being approached by a conservative religious group he did not name…[and]…that ‘all abortions at any and all stages of the unborn child’s development’ should be banned in the state.”

But even if the Supreme Court does not hear a challenge to one of these unconstitutional state laws, are women still being deprived of their constitutional rights under Roe by the very fact that these laws are permitted to stand unchallenged?  Isn’t there some obligation to protect women who are being denied their rights in so many states around the country?

For instance, do the women of South Dakota simply have to accept the fact that the 72 hour waiting period recently enacted deprives them of their constitutional rights?  The reality for many low-income women in South Dakota is that a 72 hour waiting period functionally extinguishes their right to reasonable abortion access.  So, how can these women be protected?

Slate’s Dahlia Lithwick recently reported that, “…Rev. Pat Mahoney, director of the Christian Defense Coalition, told CBN news: ‘[w]e don’t have to see Roe v. Wade overturned in the Supreme Court to end it…We want to.  But if we chip away and chip away, we’ll find out that Roe really has no impact.  And that’s what we are doing’.”

Lithwick went on to explain:

Gone are the days in which legislatures at least attempted to ensure state regulations conformed to the broadest interpretation of the Roe constraints.  The new game lies in expressly violating Roe and Casey, at the state level, in the hopes of either forcing the issue at the Supreme Court or making abortion unobtainable as a matter of fact.  Either way, abortion opponents believe they will win—and here pro-abortion rights groups may actually agree.

Speaking with Rachel Maddow, NOW’s Terry O’Neill explained that “…the fear that Justice Samuel Alito would vote to overturn Roe is so deep that reproductive rights groups may be opting to leave the state bans in place.  And…wherever unconstitutional state abortion bans go unchallenged, they become law.”

When these laws continue to advance and impact women unchallenged, are the rights of these affected women in states like South Dakota, North Dakota, and Florida being ceded “…over a judicial hypothetical?”

Lithwick agrees with some other commentators that the Supreme Court is in reality uninterested in overturning Roe v. Wade, believing that the public “…backlash would be staggering.”

Lithwick concludes with the following observation:

The conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact.  If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again… and fear of Samuel Alito is preventing anyone from challenging the host of increasingly invasive, paternalistic, and degrading state abortion regulations, it’s not just abortion foes who are getting what they want.  The court is, too.  Abortion will have become all but impossible in America—for poor, minority, and rural women in particular—in direct contradiction to a Supreme Court decision, and the court itself will have done nothing to stand in the way.

Should advocates of reproductive justice continue to allow this gutting of Roe for so many millions of vulnerable women across the country, or should something be done about it?  Is it time to risk a legal challenge before the current Supreme Court?  How many more states will have to enact laws that deny these vulnerable women their fundamental constitutional rights before reproductive rights groups act to defend them?

Moreover, doesn’t the federal government also have an obligation to stand up for women who are being deprived of their fundamental constitutional rights in so many states around the country?  Shouldn’t the federal government stand up for the rule of law and defend Roe v. Wade as the law of the land?

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