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The Public Health Fall-Out
This is not to trivialize the potential impact of a reversal. Indeed, even in states where abortion would likely remain legal, the overturning of Roe could erode subsequent Supreme Court decisions that until now have protected the practice against certain restrictions. These voided laws include spousal notification requirements, statutes dictating that a physician must attempt to sustain an aborted fetus when medically possible, and a Minnesota requirement that an underage woman receive consent from both parents before having an abortion. Pennsylvania Planned Parenthood v. Casey lowered the bar for many abortion restrictions, but a reversal of Roe could totally open the floodgates.
A reversal of Roe would be hardest felt by women from poor backgrounds. Jack Balkin, a professor of constitutional law at Yale Law School, noted in a Frontline interview that many existing restrictions already disadvantage the poor, such as twenty-four hour waiting periods that force some women to take time off work. Balkin predicts that if Roe were overturned, “we would get a series of statutes that would make the divide between poor and rich even more obvious in terms of who can get abortions and who can’t.” Those living in pro-life states would have to travel elsewhere – no small endeavor for someone of limited means – or even seek unsafe and unregulated back-alley alternatives.
Some court observers simply doubt that Roe will be overturned in the near future. David Garrow, a legal scholar at Emory University, has argued that Roe is in a “tiny category of decisions” whose reversal would seriously damage the Supreme Court’s credibility. Balkin also noted that a reversal would not be in the interests of the Republican Party, since it would likely drive away moderates and independents. Ultimately, he said, the party establishment seeks to narrow but not eliminate Roe.
Given the immense ideological and political stakes of a full-out reversal, it is far more likely that pro-life and pro-choice advocates will continue to wrangle over Casey-like restrictions that do not specifically violate Roe. This made President Bush’s nomination of Samuel Alito to the Supreme Court all the more interesting. A circuit court judge with a long and mostly conservative judicial record, Alito was one of the judges who heard Casey on the Third Circuit Court of Appeals in 1992. In his lone dissent, Alito defended the state’s law requiring women to notify their husbands before receiving an abortion, a law later struck down by the Supreme Court.