I found a fascinating read at Prawfsblawg discussing what happens if Roe v. Wade is overturned. The post is in three parts (here, here, and here).
I found the analysis interesting and, of course, agree with some of the conclusions. First, Jessie Hill argues (like me) that it is unlikely the court will overturn Roe even if another conservative is appointed to the bench.
My guess is that the conservative wing of the Court would like to see Roe overruled but is not likely to put itself in a position to vote that way anytime soon. I think the most basic reason for this intuition is that it’s just psychologically difficult to vote to take away a constitutional right previously recognized. After all, conservatives also love to hate Miranda v. Arizona, but when push came to shove, only two Justices voted in Dickerson v. U.S. to overrule it. Moreover, although it’s very hard to know quite what to make of it, the Supreme Court did issue a surprisingly unanimous opinion in Ayotte v. Planned Parenthood, a case dealing with the constitutionality of New Hampshire’s parental notification law for minors seeking abortions, just after Justice Roberts joined the crew. Without wanting to make too much of it, I’d wager that this unanimity signals at least an unwillingness to make waves in this area right away, if not actual agreement with the substance of the opinion of the Court, which upheld the lower courts’ holding that the law was unconstitutional without a health exception (while remanding to the district court for a more carefully crafted injunctive remedy). I'd therefore expect the Court to consistently deny cert in any cases that might pose a direct challenge to Roe.
This has been my feeling since the first time I read Planned Parenthood v. Casey and circled O'Connor's reasoning. I wrote in the margins this is why Roe will never be overturned. Indeed, the fact that the Rehnquist court didn't overturn Miranda has lead me to believe overturning "found" constitutional rights is highly unlikely.
The second part deals with the question of what would happen to all those abortion bans that were ruled unconstitutional with the Roe decision. This is quite interesting, especially since many legislatures wouldn't pass such laws now but might be reluctant to write new laws banishing them. In fact, I've often thought that the reason many states left these laws on the books was so the politicians would look sufficiently "pro-life" to voters.
The final part in the series discusses the way overturning Roe might affect substantive due process and bodily integrity.
Specifically, as Eugene Volokh has argued in a forthcoming Harvard Law Review article, the life and health exceptions required by Roe, Planned Parenthood v. Casey, and Stenberg v. Carhart demonstrate that the Supreme Court has actually recognized two kinds of abortion rights – a right to choose abortion as a matter of reproductive choice, and a right to choose abortion as a matter of "medical self-defense," i.e., when one’s life or health would otherwise be endangered.
The author then goes on to pose an interesting question.
If Roe is overruled – and I realize it is difficult to analyze this issue without knowing exactly how Roe is overruled – would there be still be a right to choose abortion when it is necessary for health reasons (however defined)? If the answer is yes, this suggests that there is a freestanding constitutional right to protect one’s health – which is something I and some others argue, but not, by any means, a widely-accepted proposition. If the answer is no, this suggests that women seeking abortions have a right to protect their health that no other individual possesses – a right not only to have an abortion when medically necessary (per Roe) but also a right to have an abortion by the safest method available (per Carhart). Can it possibly be true that the Supreme Court has been favoring women seeking abortions over all other individuals in this way for all these years?
Read the rest of the series to find out more. I found the arguments fascinating and better thought-out than what one usually hears from the pearl-clutching lefties.
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