The Reverse Litmus Test

President Bush and his advisors have a litmus test for the next Supreme Court nominee.

But it's not the litmus test you are thinking of.

Liberals and Democrats alike are worried that the President will nominate someone who will vote to overturn Roe v. Wade. They needn't worry. That's not likely to happen. In fact, the only litmus test the President is likely to employ is whether a candidate promises *not* to overturn Roe. Here's why.

Bush must decide if he wants to overturn Roe or preserve the Republicans as the majority party. With Roe gone, the pro-choice movement will be energized and Republican politicians will have to state on the record whether they want to criminalize abortion. Women, libertarians, and moderates may bolt the party, destroying Bush's winning coalition. Republicans may dislike Roe, but they may dislike losing elections even more.

A far more prudent strategy, and the one the President and his advisors will likely adopt, would be to appoint Justices who will preserve Roe but chip away at it slowly, for example, by devising new procedural rules that make it difficult to challenge abortion regulations in federal court, by upholding restrictions on particular medical procedures like partial birth abortion, and by further limiting abortions for minors and poor women. Moderates and independents may not like these changes, but such rulings will be much less likely to induce wholesale defections from the Republican coalition than wiping Roe v. Wade off the books. The latter is a simple, easy to understand result that people can get angry about and rally around. Procedural limitations on abortion, by contrast, are hard to explain to voters and therefore risk less political danger for the Republicans.

Chipping away at Roe slowly not only allows the party to keep moderates and independents from bolting, it also preserves a hated symbol for the party's base of religious conservatives to struggle against. As long as Roe remains law, religious conservatives can point to it as a example of what is wrong with America and with a liberal activist judiciary (which is, of course, increasingly staffed by conservative Republican Presidents!). Thus, the reverse litmus test not only holds the party's winning coalition together, it's also good practical politics.

Ayotte v. Planned Parenthood of Northern New England, a case that will be decided in the coming Supreme Court Term, is a perfect example of how the Justices might preserve Roe as a precedent while effectively wiping out much of its practical effect. The case is nominally about whether New Hampshire must include a health exception to its parental notification law, but it also involves a technical question of procedure: When challenging a newly passed abortion restriction, is it enough for plaintiffs to show that it imposes an undue burden on some class of women, or must plaintiffs show that the language of the law on its face has virtually no constitutional applications? If the latter rule applies, then almost no new abortion regulations can be halted before they take effect; instead, plaintiffs must make a series of individual challenges to specific aspects of the law that affect them personally. These as-applied challenges will take months or even years before they are finally resolved, and the remainder of the new abortion regulations will be enforceable in the interim. That means that states could pass very stringent restrictions on abortion and as long as they had some constitutional applications, they would remain on the books for years until a series of successful as-applied challenges eventually knocked away their most blatantly unconstitutional features. That is not the same thing as overturning Roe v. Wade in these states, but its practical effect is very similar.

And that brings me back to the coming Supreme Court nomination fight. A Bush nominee could easily state under oath that he or she respects precedent and will not overturn Roe and then turn around and vote for this new procedural rule, which would make Roe practically unenforceable in many states.

Indeed, one suspects that Bush's advisors know all of this, and that they may send signals that the next nominee will not directly overturn Roe.

When and if that happens, don't be fooled. Don't pay attention to pundits blathering on about a litmus test for overruling or preserving Roe v. Wade. Keep your eye on the reverse litmus test, the one that really counts.