Bench Memos

Let’s Get Hysterical

’Tis the season for state legislators to get together. Some of them have turned their minds to regulating abortion. My own Indiana General Assembly (now that the house Democrats have come back from Illinois) has passed bills defunding Planned Parenthood and banning almost all abortions after 20 weeks’ gestation (on the view that then the unborn child can feel pain). Other states have enacted various informed-consent laws, including a requirement that any woman seeking an abortion have an ultrasound, and (in some states) that she view the results.

This beehive of pro-life activity has put abortion apologists in a very bad mood. Now Dahlia Lithwick over at Slate has pierced the gloom with a screed for the ages. Lithwick views this season’s legislative activity with great alarm. She describes some of the new laws, and then she derides them as “invasive, paternalistic, and degrading”.

But nothing so mundane as cataloging a bunch of mischievous laws is on Lithwick’s mind. She has real news for her beleaguered pro-abortion cohort: These new laws are (please be seated now) actually illegal!

Hold on, that’s not news either — according to Lithwick, “It hardly bears observing here that most of these measures are against the law.” The news is that these laws would be illegal if Roe v. Wade were the law of the land — which, apparently, it is not, hence the title of Lithwick’s column, “The Death of Roe v. Wade.”

Now that really is news. Or would be, if it were the case. But it is not. “Roe remains on the books,” Lithwick concedes. “The new game lies in expressly violating Roe and Casey.” (Casey is the 1992 case which affirmed the central holding of Roe while significantly modifying the scope of permissible state regulation of abortion, an effect which Lithwick never quite explains to her readers.) And a remarkable “game of chicken” (Lithwick’s words) it is. Everybody is playing it. Pro-lifers play because they get the abortion-restrictive (albeit unconstitutional) laws they want. Pro-choicers don’t stop them, for fear of provoking an official repeal of Roe by the Supreme Court. As for the Court itself, “it does not want to be the court that makes abortion illegal, or all-but-illegal in America,” she writes, yet it wants abortion to be illegal or all-but-illegal in America. Lithwick imagines that the Court is of the following conviction: “If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again”; and “the conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact” (my emphasis).

Well, that is not quite it, either. The linchpin of Lithwick’s fantasy is actually uncertainty about Justice Alito’s views on Roe. Lithwick takes as true or at least as sincerely held the worry of some pro-choice leaders that “Alito would vote to overturn Roe,” a fear “so deep that reproductive rights groups may be opting to leave the state bans in place.” At last, something genuinely newsworthy — I have never met or spoken to any combatant in the abortion wars who believes that Sam Alito is the swing vote on repealing Roe. That honor (if you will) is Anthony Kennedy’s.

Lithwick’s fantasy includes several other impossible elements. One is that the Supreme Court not only might but is actually of a mind to make abortion “illegal.” No one who has served on the Court since Roe has ever taken that position. The “conservative” judicial position on Roe is that the Constitution says nothing about it, and that states should be free to permit or prohibit abortion as they wish. Lithwick may (at times) recognize this fact. But then she supposes that “the states” would “effectively outlaw [abortion] as a matter of fact.” That surely will be news to anyone who has followed the fight over abortion limitations in such populous states as California, New York, and Illinois. And it is hard to square Lithwick’s fanciful predictions with her own claim that “public opinion” about abortion has not changed since 1973, and that the “backlash” against any Supreme Court repeal of Roe “would be staggering.”

The true significance of current legislative efforts to regulate abortion and to limit its availability in the later stages of pregnancy is interesting and important. The truth (such as we can gauge it) about the prospects for repeal of Roe v. Wade is likewise newsworthy and even compelling. It is therefore all the more sad that Dahlia Lithwick and Slate have conspired to bury it, in favor of the cheap sensationalism which is, more and more, the stock-in-trade of pro-choice journalism.

— Gerard V. Bradley is a professor of law at the University of Notre Dame.

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