Part 2.
Let’s start with the fallacy that, as Justice Samuel A. Alito Jr. argued in the leaked draft, overruling Roe would “return the issue of abortion to the people’s elected representatives.”
Alluring as this may sound, it won’t happen. As Harvard Law School professor Richard Fallon wrote in a 2007 law review article, “The notion that by overruling Roe the Supreme Court could extract itself from controversial assessments of the constitutionality of state antiabortion legislation is not just a fallacy. It is a delusion.”
If anything, overruling Roe would expand court involvement by inviting action in state courts, testing the scope of what is protected under state constitutions. This isn’t imaginary: In Michigan, Democratic Gov. Gretchen Whitmer recently asked her state’s Supreme Court to preemptively address the question.
Meanwhile, federal courts, no matter how much they might want to get out of the business of deciding abortion cases, would face complex questions of constitutional law. Under Alito’s draft, abortion restrictions must only have a “rational basis” to pass constitutional muster. Permissive as this is, it will still present questions: Would it be rational for a state to prioritize fetal life over the life of the mother? Does protecting the fetus take priority over serious risk to maternal health? Is it rational for a state to prohibit contraceptive methods, such as intrauterine devices or morning-after pills, which prevent implantation of a fertilized embryo? Can a state prohibit in vitro fertilization because it involves the destruction of such embryos?