Balkinization: The Reverse Litmus Test, Again

The Reverse Litmus Test, Again

Readers of this blog know that I have argued the continued existence of Roe v. Wade helps the Republican Party keep its coalition together. Hence Republican Presidents-- at least those who are likely to be elected in the foreseeable future-- will have a "reverse litmus test" for overruling Roe. They will appoint judges and Justices who will chip away at abortion rights slowly but leave Roe v. Wade and Casey officially standing. Although the eventual Republican nominee will probably be pro-life (I will say more about Giuliani and abortion in a later post), he will probably not seek to overturn Roe v. Wade. There are plenty of candidates for the Republican nomination who would try to do that, but none of them, I predict, will win the nomination. And if any of them do win the nomination, and state forthrightly in the general campaign that they seek to overturn Roe v. Wade, none of them, I predict, would be elected.

It is worth noting that the top three current candidates (Giuliani, McCain and Romney) are the least likely to try to overturn Roe. Nobody can say what Romney really believes on this issue, and McCain has flipped very recently on the issue in order to cozy up-- perhaps unsuccessfully-- with religious conservatives. Note that unlike Romney, McCain has been consistently pro-life, but seeking to overturn Roe and Casey is another matter. There is no necessary contradiction here: George W. Bush is pro-life but he has carefully avoided arguing that he wants to overturn Roe v. Wade. This "pro-life but keep Roe" dance is precisely what keeps the Republican coalition together. (By the way, for those who are feeling left out, I will say something about the Democrats compromises in a future post.).

Further confirmation that this is still the operative Republican strategy comes from another NY Times article that appeared today. It essentially rehashes the point made on this blog, and particularly by my colleague Reva Siegel, that the new strategy of the pro-life movement is to argue that abortion hurts women. It seeks to turn the rhetoric of choice on its head by arguing that women who choose abortions are not fully informed or will regret their decisions later on, so they should be deterred from making a choice that they will later come to regret. Hence states need to adopt laws that will help persuade (or manipulate, depending on your viewpoint) women into accepting that they are doing the wrong thing when they seek abortions.

A new round of informed choice laws might include, among other things, longer waiting periods for abortion, compulsory sonograms, requiring the woman to examine the results of the sonogram, and increasingly forceful and one-sided canned speeches that the doctor must recite to the pregnant woman. All except the last are likely to drive up the costs of abortions, especially for poor women. (Making multiple trips adds to the cost and difficulty of abortions, particularly for women in rural areas and women who work in jobs with little leave time; sonograms add considerably to the cost of abortion and raise costs for abortion clinics.). Increasingly manipulative canned speeches may not raise the costs of performing abortions; they simply interfere with doctors' professional judgment and, perhaps in some cases, substitute junk science for the real thing.

You can now see how the two halves of this equation fit together. As the pro-life movement increasingly pushes for procedural rules that will make it more difficult for women to get abortions and will discourage them from obtaining them, the Presidential wing of the Republican Party continues to nominate judges and Justices who will read Roe and Casey narrowly to allow a wide range of different regulations of abortion without directly overturning these precedents.

If the Republicans play their cards right, they will never have to overturn Roe. Most women-- especially poor women and women in rural areas-- won't be able to get abortions, but affluent, professional, and well-connected women-- particular those in large cities-- still will. That would be a return, in effect, to the status quo before the 1960's, except that a somewhat larger group of middle class women will have effective access.

In fact, in terms of keeping the Republican coalition together, it's far better to keep Roe around than overrule it. Maintaining the shell of Roe preserves a powerful symbol of judicial activism and cultural elitism that keeps the base perpetually angry, while at the same time reassuring the affluent, suburbanites, moderates and independents that they can still get abortions if they really need them.

Posted 1:55 PM by JB [link]

Comments:

George W. Bush wants to work toward overturning Roe v. Wade (one more replacement with a Roberts or Alito will do it) but realizes the political barriers -- slow but steady progress is fine with me.

# posted by

Charles : 2:11 PM

Prof Balkin's argument expands on Prof Graber's thesis in "Rethinking Abortion" . . . an argument that I find distressingly persuasive . . . abortion has long been one of the carrots to keep the social conservatives under the tent so that the economic conservatives can achieve their political goals

# posted by

Calvin TerBeek : 3:39 PM

I agree with the analysis in the post. The GOP's ability to engage in Orwellian propaganda techinques is impressive.

But I would suggest that there's a rather large wrench coming along in the debate: genetic testing. At some point the anti-abortion ideology will crash into the wall of American self-interest, and the restrictions will gradually fade away. Or there will be a legal regime that makes Prohibition look like the essence of rationality.

# posted by

sparky : 3:51 PM

I agree with all this, and would add this general line of analysis works very well for the so-called "war on drugs," with the key difference being that, when it comes to drugs, mainstream politicians in both parties are committed to keeping our drug laws in place, while also ensuring that middle and upper class people are not too seriously inconvenienced by those laws, in regard to their consumption of illegal drugs.

# posted by

Paul Campos : 3:56 PM

Professor Balkin:

How exactly does a President "overturn" the Supreme Court's holdings in Roe/Casey? He or she cannot. All a President can do is appoint "strict constructionist" judges whom he or she thinks might rule against Roe/Casey at some point in the future.

It is tough enough to guess correctly and find one of these elusive "strict constructionist" jurists who would overturn Roe/Casey, nevertheless find one so fine tuned that he or she will narrow but not kill Roe/Casey in a nefarious conspiracy to advance GOP electoral prospects.

I largely agree with your take that the new informed consent laws could substantially reduce the number of mothers willing to undergo an abortion. However, this effect would have very little to do with the additional hassle or expense of undergoing a sonogram, which is quick and inexpensive. Rather, this effect would be brought when the mother sees her child and is then told what the abortion will do to that child. Unless you believe that wealthier urban women are more callous concerning the fate of their unborn children, I do not see a class differential in this effect.

# posted by

Bart DePalma : 4:28 PM

Bart raises a good point on the difficulty of foreseeing precisely how a jurist will rule on the Casey/Roe precedents.

Though, I disagree with one aspect of his comment:

"Rather, this effect would be brought when the mother sees her child and is then told what the abortion will do to that child."

This sentiment is not necessarily false, in my view, it just reflects a manifestly "paternalistic" position in that women don't know what they're getting into. It's safe to say, that women know, that when they have an abortion, it terminates their pregnancy and with it their unborn child.

There are many well reasoned arguments for and against abortion, but the women need to be protected argument is one of the weakest.

For this reason (as well as others), regardless of ideology, we need more women on the high court.

A Supreme Court composition that's 78% white men (with an average age in the late 60s I'd wager) and “protecting women from their self” type decisions, contribute to the argument that not only is the high court unrepresentative of contemporary America, but that the court is out of touch with their values as well.

# posted by

Unknown : 6:28 AM

It's amazing how something can become a "super precedent" on the basis of one vote: Justice Kennedy in 1992. Roe/Casey is really a super-disaster, the writing of the sexual revolution into the Constitution. Pleasure is more important than life. Abortion is the morning-after contraceptive. This degeneracy is now "constitutional law".

# posted by

Unknown : 11:02 AM

Nathaniel said...

Bart: "Rather, this effect would be brought when the mother sees her child and is then told what the abortion will do to that child."

This sentiment is not necessarily false, in my view, it just reflects a manifestly "paternalistic" position in that women don't know what they're getting into. It's safe to say, that women know, that when they have an abortion, it terminates their pregnancy and with it their unborn child.

I would suggest that the pro abortion movement intentionally misleads mothers as to the nature of abortion. Proponents of abortion and abortionists generally avoid speaking of the child at all by using euphemisms like "terminating the pregnancy" as if abortion was simply changing a condition rather than killing a child. When they speak of the child at all, abortionists use dehumanizing phrases like "fetal matter" or "a mass of undifferentiated cells." In almost every case, the abortionist will not inform the mother of how he or she plans to kill the child.

Under the informed consent laws coming down the pike, this kind of deception would be much more difficult. The abortionist cannot dehumanize the child if the mother is provided with a sonogram showing her living and often moving child. Nor can the abortionist continue to hide from the mother how he or she plans to poison, mangle or dismember the child in the process of killing and removing her.

I have no problem adding more women to the Court. There are plenty of qualified female jurists who realize that Roe/Casey is bad law. Indeed, having a woman write the decision which would finally reverse Roe/Casey would be more effectively politically and socially than having Scalia do it.

# posted by

Bart DePalma : 12:04 PM

I would add that informed consent laws may have a major secondary effect of gradually changing popular opinion concerning abortion. If mothers who initially supported abortion decline to undergo one after being properly informed, they may also be less likely to support abortion as a policy in the future.

# posted by

Bart DePalma : 12:07 PM

Proponents of abortion and abortionists generally avoid speaking of the child at all by using euphemisms like "terminating the pregnancy" as if abortion was simply changing a condition rather than killing a child.

Right, just like that movie about the human-like robot that is sent back in time to change the condition of Sarah Connor.

Bart, people know what the words "terminate" and "pregnancy" mean. The "women are stupid" argument is even worse than the "women need to be protected" argument.

If your larger point is that the frame is maintained in order to obscure the facts on the grounds, I assume you are also an active and vocal opponent of even more euphemistic tropes like "advancing democracy" or "protecting our freedoms." Both of these phrases obscure the necessary methods, and if the procedures were properly described to the American public prior to the initiation of an operation, would it substantially change their opinion on the appropriateness of the action?

# posted by

PMS_CC : 2:00 PM

euphemistic tropes like "advancing democracy" or "protecting our freedoms."

You missed some: rendition; enhanced interrogation; death tax; or any of hundreds of Rovian exemplars of Newsspeak.

# posted by

Mark Field : 3:09 PM

pms:

People (men and women equally) have a nearly infinite capacity for rationalizing, especially when they are under stress. I am not saying that women are stupid or that they need to be protected. Rather, that all people should be fully informed about abortion, especially the mothers making the decision.

As for war, I do not have time for tropes from the hawks or the surrender monkeys. War is too serious a business for my family and neighbors for self delusion. We are not "protecting our freedoms" or "trading blood for oil" by fighting in Afghanistan and Iraq, we are engaging and killing an enemy that has and still desires to kill us. The stakes are pretty clear and compelling all on their own.

# posted by

Bart DePalma : 3:27 PM

mark:

You missed some: rendition; enhanced interrogation; death tax; or any of hundreds of Rovian exemplars of Newsspeak.

You folks proving my point about the power of words to obscure reality. Folks would not use phrases like "terminating pregnancies" unless they thought they worked in advancing their agenda of obscuring the ghastly reality of abortion.

BTW, euphemisms are a bipartisan exercise. I will meet your "death tax" and raise you a "tax cuts for the rich." Then there are substituting "revenues" for taxes and "investments" for government spending.

# posted by

Bart DePalma : 3:43 PM

That's what Republicans do best: by only serving just enough appetizers to appease their guests, they'll never have to give them the main course. The old ones will die of starvation, and the young ones will be happy with whatever they get. Pathetic pandering.

# posted by

Kellygorski : 3:45 PM

It is interesting to watch the Republican candidates struggle over the question about actually overturning Roe, given the slickness that George W. Bush got away with in the past. He absolutely ducked the question, but got a pass from his Evangelical base on a wink and a nod.

Here is how Bush ducked the question in a 2004 debate:

SCHIEFFER: Mr. President, I want to go back to something Sen. Kerry said earlier tonight and ask a follow-up of my own.

He said -- and this will be a new question to you -- he said that you had never said whether you would like to overturn Roe v. Wade. So I'd ask you directly, would you like to?

BUSH: What he's asking me is, will I have a litmus test for my judges? And the answer is, no, I will not have a litmus test. I will pick judges who will interpret the Constitution, but I'll have no litmus test.

Isn't that close to what Giuliani recently got pilloried for saying in his first debate? The difference is, I think, is that he doesn't know the secret wink, and his personal religious posture is something quite different from that of Bush.

Bush has been able to skate by with a lot of squish about a "culture of life" and the appointment of conservative justices with stealth confirmation strategies on Roe -- maybe stare decisis, maybe not -- pretty close to what Giuliani said in that debate. And to this day we don't know how Roberts and Alito would vote on the key question.

# posted by

JaO : 3:53 PM

We know how Roberts or Alito voted on partial-birth abortion -- as I said above, slow but steady progress is fine with me.

# posted by

Charles : 4:22 PM

Bart:

I find it quite hard to believe that a woman who is PREGNANT and undergoes a surgical ABORTION does not understand quite well what has happened, even without "waiting periods," mandatory scientifically questionable "explanations" and other hurdles the anti-choice folks have and will continue to propose.

The original post is quite right that the best possible political outcome for Republicans is a chipping away of rights that will disproportionately interfere with poor women being able to choose abortions. But I also agree that it may be hard to pick judges with sufficient precision to get that result.

# posted by

Unknown : 4:24 PM

BTW, I am still waiting for a candidate of either party to promise the appointment of justices who will not "interpret the Constitution" but will "legislate from the bench."

Just hearing a promise of the reverse is not a very good reason to discriminate among candidates.

# posted by

JaO : 4:39 PM