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Why Roe Doesn’t Matter Right Now

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The release of Supreme Court nominee Samuel Alito’s 1985 job application for a position with the Reagan Administration has everyone up in arms about his proclamation that “the Constitution does not protect a right to an abortion.” I have no doubt that, if given the opportunity, a future Justice Alito would indeed join Justices Scalia, Thomas, Roberts, and a fifth conservative justice to send Roe v. Wade, the case which prevents states from making abortion illegal, to the dustbins of history. But such speculation is beside the point. What alarms me – and what I fear too many people are missing in this debate over Roe – is how a Justice Alito would rule in a case that will be argued before the Supreme Court today.

On the surface, the case of Ayotte v. Planned Parenthood of Northern New England is about requiring teenagers to notify their parents before having an abortion. But on closer examination, the case has a much wider reach. There are two issues before the Court in Ayotte, which is being argued today, November 30th. The first question is whether the Constitution requires a law that restricts abortion to include an exception for medical emergencies. Despite a clear and unbroken line of precedent over the past three decades requiring such an exception, the Bush Administration and the State of New Hampshire argue that unless a teenager is facing imminent death, her doctor must wait up to 48 hours or seek a court waiver before assisting her – even if she is threatened by complications like kidney failure, liver damage, or infertility. If the Court decides there is no need for a medical emergency exception in this law, it will no longer be required for any abortion law, including those that affect adult women. States would have a green light to interfere with doctors exercising their best medical judgment and providing abortion care to their patients in the safest or most timely manner.

The second question Ayotte raises is whether women and their doctors will be allowed to prevent detrimental abortion laws from hurting women. In briefs filed earlier this year, the Bush Administration and New Hampshire asked the Court to require that a woman actually be harmed – i.e., suffer the kidney failure, the liver damage, or the infertility – before she can have a law struck down. Moreover, she might only be able to argue that the law was unconstitutional as applied to her and not as to a whole group of women. In effect, every woman injured by the law would have to go into court herself. If the Bush standards are adopted, it will be virtually impossible to block unconstitutional abortion restrictions. Technically, Roe would still be “good law,” but there would be no way to enforce its guarantee of safe and legal abortion.

I’m not a betting woman, but the odds are extremely high that Judge Alito would vote for the Bush standards. If you have any doubts, take another look at his now-famous dissent in Casey v. Planned Parenthood of Southeastern Pennsylvania, in which he supported a spousal notification requirement despite evidence that it would endanger some women and favorably cited a case upon which the Bush standards rely. There are a number of ways for a Justice Alito to “respect” Roe as precedent but modify its standards. The woman Alito seeks to replace, Justice Sandra Day O’Connor, used the very same trick in Casey when she changed the legal standard in a way that made it easier for states to impose restrictions on abortions. And Alito wouldn’t need to wait for a new justice to join the Court in order to vote with a majority. Although Justice Kennedy has voted to affirm Roe, he also voted against the need for an express health exception in Stenberg v. Carhart.

Although Ayotte will be argued before Judge Alito’s confirmation hearings begin in January, he may yet have the opportunity to rule on this case. If the justices split 4-4 (very likely), they can ask to have the case re-argued with Alito’s participation (also likely). So while the commotion over how Alito might rule on Roe may be a little premature, the concern over his impact on women’s health may come too late.

Jessica Arons is the Legal Policy Associate for the Women’s Health Project and the Faith and Progressive Policy Initiative at the Center for American Progress.

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