In listening to the oral arguments this week, I could not help but think how different things would be if the Democrats controlled the Court. Most obviously, Roe would be settled law. Furthermore, the right of poor women to secure government funding for an abortion would be put in place.
Somewhat less obvious, the notion that a finding of discrimination requires discriminatory intent would be cast aside. Instead, at the very least, government action resulting in disparate impact on the basis of race would be unconstitutional in the absence of a strong justification. If a state can outlaw abortion, the harm will fall disproportionately on the basis of race, sex, and class. Forcing a woman to carry a child to term is itself problematic, but there are strong grounds to doubt that the interests of poor black women are properly valued in the “great state” of Mississippi.
To narrow the point, Washington v. Davis (requiring a showing of discriminatory intent) was wrong the day it was decided. It is too easily disguised, and, as Ken Karst argued, even good judges shy from branding an action as being stained by discriminatory intent.
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