Recently, the anti-choice movement has shown itself to be divided over
whether or not Justice Anthony Kennedy, commonly thought of as the new
vote" on the Supreme Court, is ready to overturn Roe v. Wade.
But this same division on Kennedy’s position is reflected in the
pro-choice community. Some say it’s only a matter of time before Roe is
officially lost; others say that Roe may continue to stand as
precedent, even if the current court is amenable to restricting the
right to abortion in various ways.
Ann Bartow, professor of law at the University of South Carolina
and administrator of the Feminist Law Professors, recently wrote
that the Supreme Court already has the majority it needs to overturn
Roe and might just be waiting for President Bush to leave office to do
so. "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," Bartow
wrote on the blog. "When Alito joined the Court, the gun was cocked. It
doesn’t matter who replaces Justice Stevens, should he retire. The
five votes are already there."
Bartow is referring to the second Carhart case, Gonzales v.
Carhart, which challenged the federal Partial-Birth Abortion Ban Act
passed in 2003 (the first Carhart case, Stenberg v. Carhart, challenged
a similar statute passed in Nebraska). In Carhart II, Kennedy unveiled
worrisome language that signaled a significant departure from the
standards the Court has used in the past to protect the right to
abortion, Bartow says. Kennedy’s opinion noted that "it seems
unexceptionable to conclude some women come to regret their choice to
abort the infant life they once created and sustained" –- heavy-handed,
scientifically unsubstantiated language that lines up better with the
current anti-choice "abortion hurts women" rhetoric than the language
in the decision that upheld Roe in 1992, although allowing it to be
subject to various restrictions.
Bartow’s theory, then, is that the Supreme Court is simply waiting
for Bush to leave office to overturn Roe and throw a wrench into the
plans of a new administration, one that looks likely to be Democratic.
"They have the votes to take a case now, [what] they’re waiting for is
a Democratic president and Congress," Bartow told me over the phone.
"It would really stall any work they want to do." The Court did just
decline to hear three abortion-related cases this session, but has time
to accept a direct challenge to Roe later in its term – which either
the South Dakota abortion ban or the Colorado personhood amendment,
both on the ballot this November, could supply later this year.
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Bartow’s argument sparked a heated debate in the pro-choice
blogosphere. Scott Lemieux, an assistant professor of political science
at Hunter College in New York and contributor to the blog Lawyers, Guns
and Money, disagrees with Bartow that the Court is "that crudely
political," even though he acknowledges that "to some degree, the
Supreme Court follows the election returns and it’s not a completely
apolitical body." Lemieux says that the Court elected to hear Planned
Parenthood v. Casey in 1992 just before another high-stakes
presidential election. The ruling on Casey upheld the right to an
abortion, but established that regulations and restrictions could be
placed on that right, as long as it didn’t place an "undue burden" on
the woman. Kathryn Kolbert, the ACLU attorney who argued the case,
specifically tailored her argument to force the justices to address the
central holdings of Roe before the 1992 presidential election.
Lemieux also doesn’t believe that Chief Justice John Roberts and
Justice Samuel Alito, the two most recently confirmed justices
nominated under Bush and considered very conservative justices, are
eager to overturn Roe. "I think it’s very unlikely that Roberts and
Alito would be particularly interested in a 5-4 opinion explicitly
saying that Roe v. Wade is overruled. My guess is that Scalia and
Thomas are the only justices interested in doing that," Lemieux said.
He thinks that the two justices would rather hollow out Roe, placing
more and more restrictions on the right to abortion, rather than
outright overturning it.
What Roe Fails to Protect
Casey opened the door to regulations like waiting periods, parental
notification laws, and very specific regulations on abortion
facilities. Lemieux points out that "the only regulation [the Court]
struck down, the spousal notification requirement, is the only one that
would’ve affected a woman like [Sandra Day] O’Connor. The regulations
they upheld were all ones that would be no big deal if you were an
affluent woman living in a city, but if you’re not then it’s a big
Lemieux is suggesting that many low-income women and women living
in rural areas are essentially living in a world in which abortion is
so difficult and expensive to obtain that it might as well be illegal.
Thanks to the 1976 Hyde Amendment, the federal government is forbidden
from using Title X funds for abortion services. A 2005 documentary
produced by PBS’s Frontline revealed that there is just one abortion
clinic in the state of Mississippi. "What you are seeing is that poor
marginalized women do not have access [to abortion]," said Gaylon
Alcaraz, Executive Director of the Chicago Abortion Fund, a group that
is part of a national network that grants money to women for the
medical costs associated with having an abortion.
To Alcaraz, the debate over whether Roe v. Wade will be overturned
is irrelevant as long as the Hyde Amendment remains in place. "I think
there is definitely a big disconnect," Alcaraz said about the academic
debate over Roe v. Wade and the reality on the ground. Alcaraz notes that the
grassroots side needs to be just as important as the legal side; the Supreme Court isn’t ensuring access to abortion for many women, she says, even with Roe in place.
- Kay Steiger, Next Stop, Supreme Court: What Happens if Anti-Choice Ballot Initiatives in South Dakota and Colorado Pass?
- Amanda Marcotte, The Stealth Attack on Privacy