Overruling Roe

Thu Nov 17 06:20:34 PST 2005

Nice summary.  I esp agree with point 1--that is the critical point, and we are losing big on that already in many parts of country (and of course we should worry about the less fortunate women in those areas).  (I also don't disagree that waiting periods are not effective in actually stopping abortions for many women when providers are relatively close by, but of course for many women even today clincs are not close by,and regardless, waiting periods are harmful and offensive.)  I would just add to points 4 & 5--typically these laws look like they have a purpose other than to shut down clinics so judicial scrutiny must be very close and meaningful (really needs to be "strict") and add to "no hospitalization" req that legislatures not be permitted to impose on clinics reqs designed for hospitals. 

-----Original Message----- 
From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Graber 
Sent: Thu 11/17/2005 9:02 AM 
To: conlawprof at lists.ucla.edu 
Cc: 
Subject: RE: Overruling Roe

	Agreed on almost all accounts.  Perhaps the point of agreement among all
	of us is the following.

	1. The crucial variable in determining whether less fortunate Americans
	are able to choose whether to have an abortion is whether an abortion
	clinic is within a relatively short distance.

	2. The standard regulations of abortion, funding, waiting periods,
	"informed" consent, partial birth, etc., have little impact on access to
	abortion in areas where abortion clinics are nearby.

	3.  Harrassment has a substantial impact on abortion clinics, though so
	far the Supreme Court has not demanded that states prevent harrassment
	(and has been fairly good about sustaining state efforts to that end).

	4.  All bets are off if the court sustains legislation that clearly has
	no other purpose than to close down abortion clinics.

	5.  Perhaps the crucial point is that as long as Akron I (462 U.S. 416)
	remains good law (requirement that all abortions be performed in
	hospital declared a substantial obstacle), the Roe right is likely to
	meaningful for most, though hardly all, Americans.

	Mark A. Graber

	>>> "Johnsen, Dawn Elizabeth" <djohnsen at indiana.edu> 11/17/05 8:52 AM
	>>>
	Mark is right that the main effect of Roe was to make abortions safe and
	far less expensive.  But funding restrictions are not the problem people
	have in mind when they warn of the dangers of the Court upholding
	Roe/Casey in name only, while applying the undue burden standard to
	uphold virtually all restrictions short of criminal bans.  Frontline
	broadcase an excellent episode last week:  the last abortion clinic in
	Mississippi.  It interviewed national and Mississippi anti-abortion
	leaders who described their "incremental" approach and goal of making
	Mississippi the first "abortion-free" state in the nation. They have
	enacted a series of restrictions (and engaged in protests and
	harassment) that has led to the closing of every clinic in the
	state--save one.  That last clinic is the target of new legislation
	designed to  close it down when it goes into effect in Feb. These TRAP
	laws--targeted regulation of abortion providers--often sound reasonable;
	I think this latest one requires that physicians who perform abortions
	in the state personally have admitting privileges at a nearby hospital,
	which (acc to the Frontline episode as I remember it) is entirely
	unnecessary and impossible to satisfy.  (There are numerous other egs of
	such regs targeted only at abortion clinics and designed to shut them
	down, such as hallways in clinics have to be as wide as hospital
	hallways so two medical stretchers can pass through simultaneously.
	Mississippi is far from unique:  shortages of abortion providers are
	serious, growing problems across the country--not just due to such
	legislation, but also private harassment and lack of training in med
	schools, etc.)  Currently many women in Mississippi have to travel
	hundreds of miles to the nearest provider and of course the state has a
	waiting period that requires two such trips.  So it is not the cost of
	the procedure that is the main problem, but (for some women) having to
	travel hundresds of miles-- twice--when they have no car or means of
	transportation, young kids at home already, min wage jobs w/ inflexible
	hours, unsupportive/abusive husbands or partners... you get the idea.
	Frontline interviewed women who said abortion just is not an option for
	them because of these kinds of obstacles and the unavailabilty of
	providers.  And if this latest abortion restriction does its job,
	abortion will be navailable in Mississippi just as if Roe had been
	overruled.  And that is before the Court further "overrules" Roe.  With
	a far less protective undue burden standard, many more states could
	follow Mississippi.

	Dawn Johnsen

	        -----Original Message-----
	        From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Graber

	        Sent: Thu 11/17/2005 8:24 AM
	        To: conlawprof at lists.ucla.edu
	        Cc:
	        Subject: Re: Overruling Roe

	        Several thoughts.

	        1.  As the Democratic party has become a much better vehicle for
	        abortion rights and similar, it has become a much worse vehicle
	for
	        labor and welfare rights.  I believe there to be a connection
	and am
	        presently working on this.  So, for those of us who think that
	poor
	        people may have rights to matters other than a state-funded
	abortion,
	        the overrule of ROE may not improve matters.

	        2.  The main impact of ROE was to dramatically reduce the price
	of
	        abortions and make abortions safe.  These will remain as long as
	ROE
	        remains legal.  Is there some reason to believe that those who
	        repeatedly, constantly assert that a "hollow Roe" is meaningless
	are
	        more concerned with the upperclass right not to have abortion
	        stigmatized that the right of poor people to safe and relatively
	cheap
	        abortions (and for those who disagree, please, I beg you, read
	the data
	        from the militantly pro-choice Guttmacher Institution on just
	how little
	        practical impact abortion funding bans have on the availability
	of
	        abortion services to poor persons).

	        3.  As I have repeatedly argued, the present United States is
	presently
	        divided into two factions.  The party of the rich that fights to
	the
	        death on welfare and caves on abortion, and the party of the
	other rich
	        that fights to the death on abortion and caves on welfare.

	        Mark A. Graber

	        >>> <RJLipkin at aol.com> 11/17/05 7:25 AM >>>
	        If the Roberts' Court  pretends to uphold Roe, but regulates it
	        virtually
	        "out of  existence," what will remain of the right to abortion?
	To put
	        it
	        differently,  isn't there a rather narrow range of limitations
	        available?  And if
	        that range is exhausted, how will it be possible even to pretend
	to
	        recognize
	        Roe's precedential value? And if the Roberts' Court retains
	Roe, but
	        never
	        meets a regulation it doesn't support, how will that  affect
	politics?

	        Bobby

	        Robert Justin  Lipkin
	        Professor of Law
	        Widener University School of  Law
	        Delaware

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