Monday, December 13, 2021

Thinking About Non-Roe

Stephen Griffin


Based on the commentary so far, I’m not convinced anyone has a firm grasp on the consequences that would follow should the Supreme Court use the Dobbs case to overrule Roe v. Wade.  This is not meant as a criticism, only to point out the likelihood that there could be many unexpected effects.  Perhaps it is inherently difficult to think through the implications of changing a longstanding legal reality on which so many millions of people have relied for so long.  (I’ll note I’m happy to learn about scholarship which has already made the points I detail below).

Certainly some consequences are easy to anticipate.  It is clearer now than it was, say, 20 years ago which states will continue to allow abortions under something like the Roe-Casey framework and which will not.  At the same time, no one regardless of their views should think that the fact that multiple states will ban most abortions returns us to a pre-Roe reality.  That 1960s reality is gone.  The future will be quite different, just as the structure of politics today is different.

 Two implications occur to me that I have not seen mentioned.

 [Updated with a new link after the jump]

One is whether the exceptions written into laws banning abortion will actually be effective with respect to pregnant women whose lives are in danger.  You might think the answer is obviously yes, but the worrisome case of Savita Halappanavar in Ireland is to the contrary.  Her case suggests that there might well be a dangerous disconnect between how doctors and prosecutors understand such exceptions.  In particular, if there is uncertainty about whether doctors will be prosecuted in a situation in which the patient might live, doctors will likely not proceed.  Could doctors obtain in advance the equivalent of nonprosecution agreements?  This does not seem likely, as it could make prosecutors complicit in situations where the abortion takes place but it turns out that the mother would have lived.  Pro-life organizations will be ever-watchful of these cases.  But if doctors adopt a de facto policy of no abortions at all, even in a situation where there is a high probability of death or injury, the result may well be tragic deaths like Halappanavar’s.

The second is the implications for the regulation of pregnancy nationwide which connects in turn to the legal status of women generally.  That may seem a false start – getting rid of Roe is about abortion, right?  But overruling Roe opens a door to state regulation of the entire course of pregnancy.  This is because a non-Roe universe zeroes out the fundamental right of bodily integrity for pregnant women (people) under the substantive due process doctrine.  The deferential rational basis test becomes the default standard – although, again, only during pregnancy.  Suddenly pregnant women are vulnerable to state regulation in a way that has never been the case since Roe was decided.  And motivated by their success in overturning Roe, some in the pro-life movement may well feel that this is a power that should be exercised. 

 Nevertheless, I think it’s unlikely that state will enact general codes of regulation applicable to all women during pregnancy.  There would be too much political resistance.  But to understand the potential here more fully, consider the legal situation of women who received state assistance of some kind (like Medicaid) in states like Mississippi and Louisiana that will ban nearly all abortions in the wake of Roe being overruled.  States could condition receipt of further assistance on compliance with a code of pregnancy regulation.  Such a code could require notice to the state when women discover they are pregnant, attendance at educational programs designed to convince them they should not leave the state to seek abortions, helpful information about what healthcare they should receive, and so on.  But whatever the usefulness of the information and services pregnant women receive, it is hard to avoid the conclusion that pregnancy transforms them into second-class citizens.  They are subject to special regulations that others are not.  Subject only to the rational basis test, states can subject them to all manner of paternalistic legislation.

Furthermore, even if this regulation is confined to women receiving state assistance, it may well have implications for the citizenship status of all women.  Scholars like Linda Kerber have shown how during the draft when women were not allowed to serve in the military, this fact was cited against them as evidence that women were not citizens in the full sense.  A non-Roe universe creates the same reality by underwriting the legitimacy of selective regulation of pregnant women.  By allowing states to regulate the entire course of pregnancy as they see fit, it establishes the principle that women can be treated unequally once they become pregnant.  Second-class citizenship, that is, in literal terms.  Once this legal principle is established, can it be confined to the states that ban abortions?  And even if it can, shouldn’t we all be concerned if a vast area of the country is willing to subordinate the rights of women?

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