In the hands of Justice O'Connor, the undue-burden standard actually provided some meaningful protection for many women and forestalled worse encroachments on their rights. In that regard, Rehnquist's dire descriptions were premature and O'Connor deserves our praise. But the time has now come to recognize the accuracy of his prophecy, about what Casey has wrought, and where it will lead in the hands of judges who do not respect reproductive liberty. The malleable undue-burden standard—which depends so entirely on the judge applying it—almost certainly will continue to serve as the vehicle for an increasingly restrictive abortion regime, in which the court continues to overrule Roe implicitly, even as it purports to be retaining its core. Judge Alito already has ruled that it is not an undue burden for a state to require a woman to notify her husband before she may have an abortion. Alito, of course, would replace Justice O'Connor, who cast a critical fifth vote to conclude, to the contrary in Casey, that the small minority of women who feel they cannot notify their husbands typically have good reason and know the likely consequences better than the government.
Ironically, some women may actually benefit if the court expressly overrules Roe, due to the likely backlash. Conventional wisdom now counsels that although the Republican party long has advocated Roe's demise, actually achieving that goal could cause Republicans political harm—and possibly severe harm. In the long run, this could benefit many women. I hesitate to suggest that possibility. The ultimate political and practical consequences are unknowable, and the stakes are enormous, including the certain horrors that would result from a return to many states' enactment of criminal abortion bans. Yet the alternative could prove equally dire: the relentless and invidious evisceration of Roe, restriction by restriction, year by year, state by state, woman by woman.
Roe could end with a bang or with a whimper. If we fail to hear that whimper—or the Senate neglects to point it out—it's simply because we aren't listening. Either way, the harm will fall unequally on the most vulnerable of women and families.
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