Bench Memos

On Dismantling Roe v. Wade

In an article co-published by ProPublica and the New Republic, Nina Martin presents an interesting (if at points confused) account of how Alabama supreme court justice Tom Parker is exposing the deep incoherence of Roe v. Wade. Her closing quote from a feminist scholar nicely captures that incoherence (even as Martin herself seems eager to embrace it):

Parker is pointing out all the ways the law treats the fetus as a person already…. The pro-choice argument, meanwhile, is that the personhood of the fetus hinges entirely on the women’s perception of it.

A few other comments on Martin’s account:

1. Martin says that the Court’s 1992 decision in Planned Parenthood v. Casey “reaffirmed a fundamental right to abortion.” But both defenders and critics of Roe point out that Casey’s amorphous “undue burden” standard is incompatible with the notion that abortion is a “fundamental right.”

2. Martin’s account of the competing approaches that pro-life groups took, pre-Casey, to countering Roe is confused. She says that the “comparatively moderate pro-life mainstream favored a strategy of regulating and restricting access to abortion, rather than betting on repeal” by constitutional amendment. But she seems not to understand, or at least fails to make clear, that the “pro-life mainstream” strategy was aimed at inducing the Court to reverse Roe.

3. Martin contends that Justice Kennedy “has upheld every abortion restriction to come before him.” That’s both wrong and misleading. It’s wrong because he voted to strike down the spousal-notification provision at issue in Casey. It’s misleading because the existence of Casey means that provisions that clearly clash with Casey will likely either not get enacted in the first place or will get knocked down in the lower courts. In other words, there’s no reason to believe that Kennedy is ready to revisit Casey.

4. When Martin says that the goal of the “personhood” movement is “to get to the U.S. Supreme Court—as quickly as possible, while conservatives still dominate,” I won’t contest that she accurately describes the goal of the personhood movement and its apparent misperception of the Supreme Court. But her phrasing indicates that she herself believes that on the constitutional question of abortion “conservatives still [?? since when?] dominate.” On this matter, any definition of “conservative” that includes Kennedy (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) is an unsound one.

5. Here’s one amusing sign of Martin’s cluelessness about the conservative religious world she is navigating: She writes, “Crucifixes are more ubiquitous than the American flag” in Montgomery, Alabama. She evidently doesn’t know the difference between a crucifix and a cross. (According to this Pew map, 6% of adults in Alabama are Catholic.)

Update (2:30 pm): Martin has made changes in response to points 1, 2, 3, and 5 (and, via Twitter, has graciously credited my comments). 

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