I got an e-mail from RH Reality Check today plugging a series of posts about abortion, framed with the title: “The Supreme Court Hangs In The Balance.” I’d like to offer the competing opinion that the Supreme Court has already been lost. There are already five conservative Catholic men who have expressed anti-abortion sentiments on the Court who can overturn Roe v. Wade almost any time they like, as cases in which they could reasonably do this are litigated up to the appellate level with some frequency.
The five judges are of course Roberts, Scalia, Thomas, Alito and Kennedy. These are the five judges who comprised the majority in the Carhart case. Kennedy at one time was tepidly pro-choice, but he has been moving against abortion over time. Most ominously, Kennedy authored the Carhart majority opinion, which held that the Partial Birth Abortion Act did not impermissibly burden a woman’s right to abortion. When Alito joined the Court, the gun was cocked. It doesn’t matter who replaces Justices Stevens, should he retire. The five votes are already there.
The reason I bring this up is that it is my belief that those five judges did not want to overturn Roe at a time when it would complicate life for George W. Bush or make it less likely that a Republican was elected in his wake. But if Obama is elected, they may well pull the trigger, achieving a long held goal, with the side benefit to conservatives that Obama’s momentum, and some of Obama’s initiatives, would certainly be substantially derailed in the chaotic uproar that would follow.
If I’m correct, simply electing Obama will not save the rights embedded in what remains of Roe v. Wade. Many states (estimates are as high as 30) will make abortions illegal the minute Roe v. Wade is substantively overturned. Only seven have enacted laws that provide a right to abortion. It is therefore important to be ready with draft legislation that establishes a national right to abortion to quickly introduce into Congress as soon as the elections are over and Obama is sworn in, and hopefully a large Democratic majority in Congress as well.
ETA: Some observations about Justice Kennedy’s evolving abortion jurisprudence:
Eight years ago, Justice Kennedy dissented in Stenberg v. Carhart, while the majority held that the government could not prohibit doctors from performing a so-called (by opponents) “partial-birth abortion” because it might be the most medically appropriate way of terminating some pregnancies.This lead many observers to wonder if Kennedy had undergone an “abortion conversion,” see e.g. this, see generally this, and below is an excerpt from Linda Greenhouse’s NYT report on the opinion:
Justice Anthony M. Kennedy’s dissenting opinion was a major surprise to both sides of the abortion debate. Not only his disagreement with the majority, but also the terms in which he expressed his views both in this case and in a second abortion-related decision today indicated Justice Kennedy’s deep unease with a 1992 decision, of which he was a joint author, that had reaffirmed the right to abortion. The second decision upheld restrictions on demonstrations outside abortion clinics.
Emphasizing what he described as the “consequential moral difference” between the “partial-birth” method and other abortion procedures, Justice Kennedy said that in its 1997 law, Nebraska “chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.”
According to the papers of the late Justice Harry Blackmun and other accounts, Kennedy in 1992 nearly sided with the conservatives in a Casey majority opinion that would have effectively nullified Roe. But he changed his mind, flipping the majority and working with Justices Sandra Day O’Connor and David Souter to craft a joint opinion for the Court. Their writing celebrated Roe but also left room for states to enact restrictions on abortion, so long as no “undue burden” was imposed on the abortion right.
Eight years later, when the Court took up the partial-birth abortion issue, Kennedy clearly felt betrayed when O’Connor and Souter invoked Casey to form a majority to strike down exactly the kind of state restriction he thought was permissible under Casey — a ban on the controversial procedure known as intact dilation and extraction.
Kennedy was so upset about what he perceived as the majority’s perversion of Casey that a rift developed between him and Justice Clarence Thomas, who had apparently been assigned to write the main dissent in the 2000 case, Stenberg v. Carhart.
According to “Supreme Discomfort,” a new biography of Thomas out this week, one Thomas law clerk tearfully confronted a Kennedy clerk, questioning why Kennedy felt the need to write a separate dissent. “In Thomas’ chambers, [Kennedy's separate dissent] was seen as pure grandstanding,” according to authors Kevin Merida and Michael Fletcher.
In the dissent, Kennedy wrote that the majority opinion “ill-serves the Court, its institutional position, and the constitutional sources it seeks to invoke,” adding that “the Court’s holding contradicts Casey‘s assurance that the State’s constitutional position in the realm of promoting respect for life is more than marginal.”
The same article observed: “Kennedy’s redirection of the Court’s abortion jurisprudence is a milestone in a long campaign to remake the high court’s abortion law, begun by Presidents Ronald Reagan and George H.W. Bush.” And finally, in the wake of Kennedy’s majority opinion in Gonzales v. Carhart last year, Linda Greenhouse wrote in the NYT:
… The shift in the court’s discourse was”enormous,”said Prof. Reva B. Siegel of Yale Law School. It was, she said,”beyond Alice in Wonderland: criminalize abortion to protect women.”
In an article to be published shortly in The University of Illinois Law Review, Professor Siegel traces the migration of the notion of abortion’s harm to women from internal strategy sessions of the anti-abortion movement in the 1990s to the formation of legal arguments and public policy.
The South Dakota abortion ban that the state’s voters repudiated in November was a prime example of that strategy coming at least temporarily to fruition. Entitled”South Dakota Women’s Health and Human Life Protection Act,”the ban included as an official legislative purpose the protection of”the mother’s fundamental natural intrinsic right to a relationship with her child.”
The South Dakota Legislature has also enacted an”informed consent”law requiring doctors to tell a patient seeking an abortion that”the pregnant woman has an existing relationship”with the”unborn human being”in her uterus. Whether the state can require such a script is a question that was argued last week before the federal appeals court in St. Louis. The language would be unlikely to raise alarms at the Supreme Court, based on the majority opinion on Wednesday.
On his blog, Balkinization, Prof. Jack M. Balkin of Yale Law School defined the message behind what he called the”new paternalism”:”Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.”
Despite the activity in the states, the anti-abortion movement’s new focus remained largely under the radar until it emerged full-blown in Justice Kennedy’s opinion. As evidence that”some women come to regret their choice to abort the infant life they once created and sustained,”Justice Kennedy cited a brief filed in the case by the Justice Foundation, an anti-abortion group that runs a Web site and telephone help line for women”hurting from abortion.”The brief contained affidavits from 180 such women, describing feelings of shame, guilt and depression. …
Obviously I can’t read Justice Kennedy’s mind. But I think it is entirely possible that he would vote to strike down Roe v. Wade in the near future.