Monday, July 25, 2005

Overruling Roe Isn't The Issue


Posts like this and this speculate that John Roberts will vote to overturn Roe v. Wade despite what he said at his April 2003 confirmation hearings:
Roe v. Wade is the settled law of the land. It is not--it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.

The reasoning is that as a circuit judge Roberts is bound by precedent, but as a Supreme Court judge he is not.

I think this misses the point.

First, the issue is not whether Roe is overruled. The issue is whether it is hollowed out and made practically irrelevant. As I've explained here and here and here there are good reasons why the Republican Party does not want to see Roe overruled. It would split their coalition and undermine their position in national politics for years to come. The far more strategic approach is to nominate candidates who will "follow the law:" they will uphold Roe's ban on outright criminalization of abortions but slowly whittle away at the decision until it provides the practical right to abortion only to relatively educated and affluent women with resources and connections. That is, ironically enough, pretty much what the effective "right" of access to abortion was before 1973 when Roe was decided.

If you think that's not possible, remember the fate of two other very controversial Supreme Court decisions. Brown v. Board of Education and Miranda v. Arizona. Brown v. Board of Education is now universally lauded, but our schools are increasingly segregated by race, and Brown is now used by conservatives to attack the constitutionality of affirmative action. Miranda v. Arizona is still disdained by many conservatives, but it was reaffirmed in 2000 in an opinion by Chief Justice Rehnquist himself. However, the rule of Miranda has been watered down in subsequent decisions and its practical effect undermined by generations of clever police tactics. Miranda survives in part because television shows have made it an icon, but that says nothing about its practical effect. If you are really concerned about abortion rights, you should stop worrying about whether Roberts will overturn Roe and start worrying about all the ways he could vote to limit it.

Second, why is it so difficult to believe Roberts when he says that Roe is settled law? If the Bush Administration has the strategy I attribute to them, they would nominate someone who sincerely believed precisely what Roberts said, not only in his capacity as a circuit judge, but also as a Supreme Court Justice. I predict that very soon we are going to see a conservative establishment position on Roe v. Wade which goes something like this:

We tried for years to overturn Roe, but the Supreme Court repeatedly rejected our attempts and told us in Casey that the issue was settled. Because of Casey, Roe is a "super stare decisis" precedent. We don't like it, but there are lots of other liberal opinions (like Miranda) that we don't like either. However, the fact that Roe is settled doesn't mean that it should be read the way liberals want-- abortion on demand. Rather, it means only that you can't criminalize abortion and you can't deliberately try to stop women from getting abortions. Anything else is fair game, even if it reduces the number of abortions.

Roe doesn't say you can have any method of abortion you want, just a medically safe one, even if it's more expensive than others that the state prohibits. The key point is that there's nothing unconstitutional about state policies designed to reduce the number of abortions as long as women aren't directly coerced. Casey itself said that states could prefer childbirth to abortion, and we'll vote to uphold almost any statute that does so. Eventually we think most Americans will agree that we should have a culture that respects unborn life, and Roe won't matter very much

The expression "super stare decisis," by the way, isn't original with me. It was coined by none other than Michael Luttig in a decision in the 4th Circuit. Of course Luttig was also speaking in his capacity as a circuit judge. Nevertheless, I think that the idea is going to gain currency among lots of conservatives: we think Roe was a mistake, but we'll uphold the basic rule against criminalization and coercion. You can also see the signs in how conservative courts are treating Lawrence v. Texas, which struck down state sodomy laws: Lawrence, like Casey, does not protect a fundamental right, only a "liberty" interest. It prohibits criminalization of sodomy, and nothing more.

Again, I can easily see someone like Roberts, who is a lawyer's lawyer, and who believes in all the Rule of Law values, taking a position very much like this when he gets on the Court.

In my view, that's going to be the mainstream conservative position of the future, and it's the one that pro-choice people ought to be worried about.


You act like the Supreme Court has the power to determine who can have abortions. The claim that only affluent women will be able to get abortions is true only if every state adopts the sort of strict abortion rules you think the right wants. It's not like Roberts is going to vote to uphold an abortion restriction and then all the states, in orgasmic joy, are going to pass exactly that restriction.

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