Throw Roe From The Caboose

My TAP article about Casey and Alito is up. Atrios explains the reason for Ken Mehlman’s House of Fog memo (we nominated him because he disagrees with the legal positions conservatives have long held on the most salient issues! Scout’s honor!”) Not only does the public favor not confirming Alito if he’s anti-Roe by a 16-point margin, 60% of independents and even 35% of Republicans would not confirm if he’s against Roe.

In addition, Professor B explains what’s at stake in a brick-by-brick dismantling of Roe:

…we could end up with a situation in which, theoretically, you still have the right to an abortion–that is, Roe v. Wade hasn’t been fully overturned. But in practice, and practice is what matters, you don’t, or can’t, because all these individual little delays and hassles and inconveniences, none of which, in and of itself, constitutes what Alito considers an “undue burden” on some generic, middle-class, well-off, happily-married imaginary woman–all these little delays add up into a *collective* burden that means that abortions are inaccessible to women who need them. What you can practically do matters more than what you can theoretically do: pregnancies aren’t theoretical, women aren’t theoretical, abortions aren’t theoretical. It is the very fact that each individual woman’s individual situation is different that makes this whole “undue burden” issue so important. “Undue burden” for whom? What constitutes a burden to me might not constitute a burden to you; what isn’t burdensome to you or me might be impossible for the woman down the street.

This is right. The effect of permitting ever-widening state and federal regulations while simultaneously making it extremely difficult to challenge the regulations in court would be to return to the indefensible status quo ante on the ground before Roe: abortion-on-demand for affluent women (especially those in urban centers), extremely restricted access for everyone else. But with an extra varnish of bad faith on top.