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Friday, January 31, 2014

It's A Trap

Interesting analogy:

What are TRAP laws? The National Abortion Federation defines them as laws that "single out abortion clinics for unnecessary, politically motivated, restrictive regulations. ...TRAP bills are measures calculated to chip away at abortion access through the guise of legitimate regulation."

Reading that definition reminded me of a parallel situation, namely the kinds of restrictions on voting rights that state governments enacted in the Jim Crow South. I'm not talking here about making a moral equivalence per se between Jim Crow and these new abortion-related laws, but about the impact they will have. Measures such as the poll tax, the literacy test, and the "white primary" did not directly prevent black people from voting on Election Day, but that was their effect in reality and that was exactly the intent of the people who wrote them. Same goes for the TRAP laws. 100 percent.

The legal, i.e., constitutional argument, is not straightforward, as the literacy test was not found to be unconstitutional on its face if it was applied in a race-neutral way (which it was not for decades, thanks to the grandfather clause). The 24th Amendment to the Constitutionbanned poll taxes, but there is no parallel prohibition on charging for abortions.

On the other hand, the so-called "white primaries" of the Jim Crow South may offer a legal parallel. For decades, Southern states claimed that as long as there was no racial discrimination on Election Day (which there was), they were following the Constitution (which they weren't). However, the political parties were private organizations, and if it was decided blacks couldn't vote in, let's say, the Democratic primary, then that was outside the government's purview. Given that the South was a one-party Democratic (i.e., Dixiecrat) region during Jim Crow, this meant effective disenfranchisement based on race. In Smith v. Allwright (1944), the Supreme Court agreed, and declared the "white primary" unconstitutional. I would argue that a law that severely restricted access to abortion in a state might well be a direct parallel in constitutional terms.

A right isn't much of a right if it's impossible to exercise.


January 31, 2014 | Permalink


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The analogy breaks down with the basis for freedom from racially based discrimination (which is explicitly unconstitutional) and access to abortion (which is based solely on the legal reasoning in Roe and Casey): the whole point of the laws restricting abortion access is not just to limit abortions, but to eliminate them by getting the Supremes to overrule Roe.

There's no equivalent outcome in race-based discrimination such as literacy tests. True, the effects are the same; but such discrimination was always against the Constitution; it just had to be recognized as something the Constitution would not tolerate (as in the case of primaries in the South). Whether the Constitution tolerates abortions hangs on a much thinner thread.

The goal of the obstructionist racist laws was to block access to political power based on race. The goal of the laws restriction abortion is not just to restrict access, but to be able to outlaw it again. There is no right at all if it can be declared illegal.

I honestly think if anything needs a Constitutional amendment to protect it, it's the right to abortion. But the only amendment anyone is talking about now is one to rescind Citizens United.

As Deep Throat said, "Follow the money."

Posted by: Rmj | Jan 31, 2014 8:06:06 AM

No analogy survives a lot of scrutiny for very long. And an amendment would be grand.

Posted by: NTodd | Jan 31, 2014 8:12:58 PM

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