Academic

Abortion and the Supreme Court: One Depressing Possibility

By Ann Bartow

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. 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. 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.

–Ann Bartow

Full post as published by Feminist Law Professors on October 08, 2008 (boomark / email).