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If the gun wasn’t smoking, it was at least warm to the touch. Last week’s discovery of a 20-year-old memo showing that Supreme Court nominee Samuel Alito Jr. helped craft the Reagan administration’s strategy to overturn Roe v. Wade touched off a fresh round of clucking by nervous Democrats and abortion rights advocates that Alito is a dangerous extremist unfit to serve on the high court. But the offending document, released by the National Archives along with hundreds of other pages of Alito-related materials, was less startling than it was purported to be. Clearly, Sam Alito opposes abortion. His record as a government lawyer will tell you that. His record on the bench will tell you that. Even his mother will tell you that. That, however, isn’t the question the Senate will likely concern itself with at next month’s confirmation hearings. Rather, in relation to abortion rights, the issues are, first, would confirming Alito lead to the overturning of Roe? And if not, would confirming Alito undermine the abortion rights guaranteed in the Roe decision? Alito’s statements to date suggest that the answer to the first question is no, while his record on the bench suggests the answer to the second is yes. Regardless, abortion rights activists have reason to be nervous � and to be primed to use their frequent-flier miles. Ironically, the fall of Roe would likely shift the battle over abortion to the states and render Washington, for 30 years the center of the abortion battle, almost irrelevant. A LESS-THAN-FRAGILE MAJORITY Of course, even if Alito is gunning for Roe, Supreme Court math suggests there are five votes to uphold the decision: Justices Ruth Bader Ginsburg, David Souter, Stephen Breyer, John Paul Stevens, and Anthony Kennedy � with Kennedy being a potential wild card. “Kennedy remains a source of some concern,” says Priscilla Smith, the director of the Center for Reproductive Rights‘ Domestic Legal Program.
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But while Kennedy’s record on abortion issues is mixed, he has already passed on more than one chance to vote to undermine Roe. Significantly, his majority opinion two years ago in Lawrence v. Texas, the Texas sodomy case, showed strong support for a constitutional right to privacy, the bedrock upon which the Roe decision rests. As for Alito, he has expressed an abiding respect for Court precedents, especially so-called superprecedents � landmark opinions, like Roe, that have become enshrined doctrines in law that the public relies upon. (Of course, Justice Clarence Thomas said much the same thing before his confirmation.) The twin forces of respect for precedent and for privacy have caused a fault line in conservative judicial philosophy that may now constitute an impassable obstacle in the drive to overturn Roe. But if the high road is blocked, often the low road will do. The Court’s 1992 ruling in Planned Parenthood v. Casey upheld Roe but also allowed state legislatures to enact restrictions on abortion so long as they didn’t constitute an “undue burden” on women. After Casey, abortion opponents mounted a 50-state campaign to restrict abortion through targeted regulation. Federal judges have proved reluctant to strike down such restrictions, and none has been more reluctant than Alito. As an appellate judge ruling on Casey, he voted to uphold all five restrictions Pennsylvania placed on abortion, and he has given little indication since that time that he’ll find abortion restrictions unduly burdensome. Such restrictions were front and center at the Court last week as the justices considered a challenge to a New Hampshire law that requires parental notification before a minor can have an abortion, even in the event of a medical emergency. The so-called health exceptions to abortion restrictions have long been a bugaboo for conservatives, who see them as loopholes doctors use to circumvent limitations on abortion. Abortion rights advocates see the effort to eliminate health exceptions as part of a disturbing trend discounting the well-being of women in favor of limiting abortion, and they note that much of Roe was focused on such medical concerns. In considering New Hampshire’s law, the Court was troubled by the lack of a health exception and seemed inclined to return the case to the lower court so it could consider whether some sort of provision for medical emergencies could be tacked on to the law, giving doctors some leeway. This sort of compromise � allowing states to test the scope of abortion without eliminating its constitutional foundations � has been the hallmark of the Court’s post-Casey jurisprudence. And while Alito may not be the Roe-slaying silver bullet conservatives have sought for 30 years, there is scant evidence to suggest that he would do anything other than accelerate the trend. Despite the weakening of Roe, abortion rights advocates believe the case remains a critical precedent that must not be overturned. “It would be devastating to women’s health care and to the pillar of privacy cases that limit the state’s right to interfere with our lives,” says Nancy Northup, president of the New York-based Center for Reproductive Rights. WARS BETWEEN THE STATES But hoping for the best hasn’t stopped Northup and her organization from planning for the worst. In 2004 the center published a 140-page report, What If Roe Fell? Cross-referencing that report with research done by anti-abortion groups such as Americans United for Life and the Family Research Council, it’s possible to arrive at something of a consensus view of what a post-Roe legal and political landscape might look like. The first and most immediate result of overturning Roe would be that the abortion question would be kicked back to the states. Such a ruling would not in and of itself make abortion illegal; it would simply revoke constitutional protection for abortion rights. That, in turn, would likely give rise to a patchwork system in which abortion rights would vary greatly from state to state. A state-by-state analysis of support for abortion rights unsurprisingly largely coincides with the distribution of red and blue states in the past two presidential elections. But there are some surprises. For example, abortion has a strong legal foundation in conservative Tennessee and Wyoming, but in left-leaning Rhode Island, Michigan, and Wisconsin, abortion rights are on shakier legal ground. Pennsylvania could swing either way. In all, 21 states appear likely to ban abortion with certain exceptions, while another nine could restrict it heavily, according to the Center for Reproductive Rights. On the other side, 10 states, including California and New Jersey, have strong constitutional protections for abortion rights, and the remaining states appear unlikely to adopt significant restrictions. Hence, a post-Roe battle would likely focus on about 30 states where abortion rights would be in play. Clarke Forsythe, senior attorney with Americans United for Life, believes that overturning Roe would have minimal impact in the short term, but acknowledges that only 15 or so states have strong existing protections for abortion rights. Specific legal strategies on both sides take into account how states have treated abortion rights historically. In a dozen or so states, pre-Roe abortion bans are still on the books but have been blocked by court injunctions. Thus, if Roe falls, lawyers from both camps would fan out to state courthouses to battle over lifting those injunctions. Beyond the initial skirmishes, the fight would move into the legislatures. Because states would have the option to legalize abortion � as New York state did before Roe � or to ban it, it is likely social conservatives would push bills restricting abortion in all 50 states. “We have lawmakers in many states poised to introduce some kind of abortion regulations consistent with public opinion,” says the AUL’s Forsythe. The political pressure would come from both sides. “A legal strategy is more than just litigation,” says Alfred Ross, head of the New York-based Institute for Democracy Studies. Ross says liberal activists would focus on electing legislators who support abortion rights. It is also possible that Congress could set a national abortion policy, as legislators did on a smaller scale when they banned “partial-birth” abortion in 2003. “I wouldn’t put it past the Republican majorities,” says the Brookings Institution’s Sarah Binder, who studies Congress and the courts. “Some say it would be too radioactive, but I’m not sure I buy that. For social conservatives, it’s not just �an issue,’ it’s the be-all, end-all issue.” In the end, whether Roe is actually overturned may turn out to be a secondary point. However Alito might vote on the case, the conservative bloc on the Court is likely to continue to rubber-stamp abortion restrictions adopted by state legislators. In an increasing number of states, abortion rights have already come to be treated the same way civil rights awarded to African-Americans after the Civil War were treated in the post-Reconstruction era: They exist more in theory than they do in fact.


Douglas McCollam is a contributing editor at Legal Times . A version of this article appeared previously in The American Lawyer . He can be contacted at [email protected].

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