Would Judge Samuel Alito, if confirmed to the United States Supreme Court, vote to overrule Roe v. Wade? No question seemed more on senators' minds, and consequently in the news and before the public, as the Senate Judiciary Committee considered his nomination. Alito's record invites such questioning. He is the first nominee since Robert Bork with a crystal-clear paper trail of opposition to Roe, consisting not just of academic musings or theoretical objections, but also of affirmative efforts to deprive women of constitutional protection, followed by expressions of pride in his anti-Roe work.
But senators stressed the wrong question—again and again and again—and to no avail, all at the expense of what is most immediately at stake. The senators' near-exclusive focus on an express overruling of Roe is misguided, misleading, and even harmful. Certainly a Justice Alito might vote to overrule Roe expressly and completely. But at least in the short run, he is more likely to heed the advice he offered as a lawyer in the Reagan Department of Justice and hollow it out. There is more than one way for the Supreme Court to overrule Roe v. Wade. Senators knew Alito had long advocated such an incremental approach to eviscerating Roe, and they might have probed with the nominee the consequences and constitutionality of abortion restrictions short of criminal bans. But the questioning stressed only the possibility of Roe's outright reversal, disregarding the slow, incremental war of attrition that abortion opponents have waged with devastating success for decades.
We have squandered a rare opportunity for public education. The Senate's focus on the formal status of Roe, while understandable, masks the extent to which the court has already gutted the right to choose and what the confirmation of Alito most immediately would mean for reproductive liberty.
How precisely does this incremental evisceration of Roe work? State legislatures have enacted literally hundreds of abortion restrictions that fall short of bans, some of which have already been upheld by courts, under the prevailing "undue burden" standard. Such government restrictions, combined with clinic violence and harassment, have drastically reduced the number of abortion providers around the country and have made access to the remaining providers exceedingly difficult for growing numbers of women.
Abortion restrictions often sound superficially reasonable and appealing: They include such benign-sounding requirements as waiting periods, "informed consent," special physical specifications for buildings in which abortions are performed, and special hospital admitting privileges for the physicians who perform them. They are designed to sound reasonable while also limiting the number of abortions performed, ultimately as completely as would a criminal ban.
Some parts of the country are fast approaching, in practical measures, the conditions that existed prior to Roe. Anti-abortion activists now boast of their success in moving, for the first time since 1973, toward "abortion-free" states. Three states—Mississippi, North Dakota, and South Dakota—are in close contention to become the first to achieve that title. In each, just one abortion provider remains in the entire state; with just one clinic closure in any of them, legal abortion will be as unavailable within that state as if the court had expressly overruled Roe.
Today, across the nation, fewer abortion providers remain than at any other time in three decades. Many women cannot travel the required hundreds of miles to the nearest clinic, often out of state, and even fewer can do so twice—as required by mandatory waiting periods. Some women have never traveled those kinds of distances; cannot afford the travel; do not own cars and cannot arrange other transportation; cannot arrange child care; would lose their jobs if they missed work; or have abusive husbands they cannot escape. Poverty, location, abuse—these are the very same circumstances that once determined which women most suffered prior to Roe.
The notion of legal restrictions as some kind of reasonable "compromise"—perhaps to help make abortion "safe, legal and rare"—thus proves nonsensical. For the woman denied access, the deprivation is absolute: Either a woman can get a safe and legal abortion, or she cannot. For her, a possibly urgently needed abortion is not "rare," it's impossible.
Years of attack and these relentless incremental losses have shaped the expectations and responses of pro-choice Americans. When we lose narrowly, we are jubilant. We resemble the proverbial frog that, when put in a pot of cold water over a fire, does not jump out, but gradually boils to death. We not only tolerate, but actually celebrate the growing warmth. Just last week, when, in Ayotte v. Planned Parenthood, the Supreme Court reversed and vacated a lower-court ruling enjoining a restrictive abortion law as unconstitutional and raising the bar for future invalidations of restrictive laws, abortion-rights advocates declared victory—because they feared far worse, and reasonably so.
Most telling, the court's 1993 decision in Planned Parenthood v. Casey was hailed on all sides as a great victory for reproductive liberty. The court had appeared to be on the brink of expressly overruling Roe. Instead it "merely" overruled key portions of its two most recent decisions that had applied Roe to strike down state abortion restrictions. We all continue to laud Justice O'Connor as Roe's savior, for crafting Casey's "undue burden" standard to avoid Roe's express demise. But Chief Justice Rehnquist, writing for the four dissenting justices in Casey, detailed the ways in which the majority had actually overruled Roe (an end he of course endorsed). He wrote that Casey "retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of the case." He concluded: "Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere façade to give the illusion of reality."
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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