Make no mistake, if there are such things as “activist” judges the five who voted to uphold the Congressional ban on “partial birth abortion” are now the poster children. In a blatantly religiously and politically motivated decision, they ignored recent court precedent (only 7 years old), based their decision on discredited science, and interjected arguments about protecting women from their own decisions (because according to the “conservative” mindset, women are feeble and infantile and need to be prevented from doing things that they will later regret). It was a low point for a court that has not lacked for low points in recent years.
What is particularly sad is how predictable it was, and how Democrats never mounted a real fight to prevent it from happening. Replacing Sandra Day O’Connor, a moderate female judge, with Samuel Alito, a far right Scalia copy, who during his confirmation hearings made it clear that he still resented the “irresponsibility” of the 1960s, left no doubt about how the Court would change. Alito’s confirmation hearings even revealed memos that he submitted to the Reagan Administration outlining the exact strategy for stripping women’s rights that he helped put into effect in the latest decision.
But I think there are a number of silver linings worth noting. In fact, I think this decision may end up being a gift for progressives in their struggle to protect women’s rights. Here’s why:
1. Progressives need to confront the ethical challenges that late-term abortions pose. As I noted on VoR long ago, both extremes in the abortion debate lead to immoral policies. Those on the right who elevate embryos to the status of human beings strip women of their fundamental right to control their bodies, in addition to preventing medical advances that could well save millions. Those on the left refuse to acknowledge that a developed fetus has at least some rights: there is a point short of nine months when the fetus is sentient, conscious, and can feel pain.
Instead of trying to ignore this, progressives should be asking why significant numbers of women let pregnancies develop so long that a procedure hardly distinguishable from infanticide becomes necessary. No doubt there are cases where complications arise late in a woman’s pregnancy that threaten a woman’s health and make this procedure necessary; but just as surely there are cases that arise for less defensible reasons. Since the far right wants to criminalize abortion, their efforts to restrict and regulate the procedure are justly viewed as nothing but interim steps towards their ultimate goal; they cannot be trusted to have the best interests of women at heart. Only pro-choice progressives, who have fought and defended a woman’s right to choose, have the trust and confidence of women. It’s up to them to make a good faith effort to see that late-term abortions become even more rare. Perhaps they can never go down to zero, but that should be the goal. If progressives can get beyond the belief that any questioning of any abortion is a betrayal to women, they may realize that this issue provides an opportunity to continue to win over the public.
Abortion is an issue where the middle ground has it right. A strong majority of Americans believe that abortion should be legal in all 50 states in the early part of pregnancy. This is when the embryo or fetus is in a pre-conscious state (and in fact when millions each year are destroyed through natural miscarriages). But the public recognizes that at 4-5 months these fetuses not only start resembling babies, they can also think and feel. So people want restrictions on late-term abortions: not because they want to deny women’s rights, but because they have legitimate moral qualms about destroying sentient beings.
The left must realize that affording moral status to highly developed fetuses does not make them “sell outs” and does not “buy into the right-wing frame”; it is instead an honest attempt to grapple with the issues that abortion presents. If they can make this leap, the left will find that public opinion supports their position.
2. This brings me to the second silver lining. If Roe v. Wade is ever overturned the conventional wisdom is that the “blue” states will legalize it and the “red” states will criminalize it in varying degrees, creating a patchwork of rules and regulations. What seems more likely to me, however, is that a federal law requiring all states to permit abortions would be enacted by a Democratic majority in Congress (Eliot Spitzer of NY has just produced a model for this type of legislation). This law would immediately be challenged and the case would make its way to the Supreme Court. The Justices would have to decide whether Congress has the right under the Commerce Clause to regulate abortion. Since women denied abortions in one state would obviously cross state lines to receive abortions, any sensible reading would indicate that of course Congress has this right.
More importantly, the Court’s recent ruling for the first time upheld a federal law regulating abortion. This gives the Court its own precedent validating this reading of the Commerce Clause. Justices Thomas and Scalia, recognizing that the precedent they were setting could be used to enact laws in favor of abortion rights, made it clear in their concurring opinions that they were not deciding on the merits of Congress’s authority, just on the specifics of the regulation. They obviously wanted to leave open the door to their ultimate goal: not only to overturn Roe v. Wade, but to deny the federal government any ability to require states to permit abortions.
Would three more Justices agree with such a radical position? A position which would obliterate centuries of precedent, and throw into question literally hundreds of Commerce Clause cases? After decrying “activist” liberal judges and saying for decades that abortion should be decided by the legislature, would five Justices have the nerve to deny the government this power? I don’t think so: it would destroy the Court’s reputation and legitimacy for decades. I cannot see a scenario where Chief Justice Roberts (or even Alito, who is if anything an incrementalist) would agree to this reading.
3. This brings me to whether the recent decision is a step towards overturning Roe v. Wade. I think it does the opposite. It further strengthens Roe because, more than anything, every new case that affirms Roe’s basic structure, as this did, solidifies Roe as precedent. While no doubt the Court undermined some of the spirit of Roe, particularly in its disrespect for women’s ability to make decisions for themselves, Kennedy in his majority opinion went out of his way to affirm Roe’s fundamental tenets. I think a woman’s virtually unfettered right to an early-term abortion has less of chance of being overruled now more than ever. I may be wrong. We will see what new obstructions the far right comes up with, and which if any the Court upholds.