Roe v. Roberts

by Robert Herold & r & Regarding the nomination of John G. Roberts to the Supreme Court, I take the apparently offbeat view that to understand what's really at stake we need look no further than the core of the White House political agenda. Issues, positions, constitutional interpretation, even those values so dearly held by "the base," I suggest, are merely instrumental to a larger goal -- keeping the GOP in power. And I have to believe that Karl Rove is smart enough to realize that absolutely nothing worse could happen to the Republican Party's chances of remaining in power than for the Court to summarily overturn Roe v. Wade.


This case has been the Democratic Party's proverbial albatross for three decades now. It has served to mobilize and keep mobilized the religious right, the constituency without whose support the GOP would be polling, oh, maybe 35 percent of the electorate.


Yes, terrorism plays well for the GOP. Bush drew 84 percent against Kerry's 16 percent on this issue. But the public's support for what amounts to the Bush terrorism writ large agenda has all but vanished in the wake of what the public now knows about the real reasons America invaded Iraq. And I can't imagine those preachers in southern Ohio stirring up the faithful to get out and support more tax cuts for the wealthiest 1 percent.


No, for more than 30 years, the GOP's main mobilization issue has been abortion, and when we talk about abortion, we're talking about Roe v. Wade.


Overturning Roe would be a political windfall for the Ds. It could rejuvenate the Democratic Party. Those who are old enough to remember the stories about young girls seeking abortions, maimed for life by butchers masquerading as doctors, will know what I mean. These stories came with the morning newspapers, and they will come again should Roe go. Also back then, the public was clearly aware that abortions could always be had by the well off. It was a class issue (in a way that those tax cuts for the upper 1 percent, for some reason, aren't) as well as a privacy issue. Then came Roe, which interfered with the political process and gave the religious right the one issue it needed to get out the vote.


The Bush administration, which clearly understands the mood of the mob, must believe that in John Roberts they have found a highly respected, confirmable jurist who will appreciate that it isn't advisable to summarily dump Roe v. Wade -- not because of the White House political agenda, but rather because of the jurist Roberts is.


Nor would it be that easy because a decision to toss Roe would necessarily lead the Court to the task of taking on privacy on multiple legal fronts. While acknowledging that the Constitution doesn't mention privacy per se, Harry Blackmun in Roe cited a dozen or so cases wherein the Court had supported the idea that privacy was implied. Privacy in Roe rests most directly on Griswold v. Connecticut, a 1965 case. This famous (or infamous, depending on your point of view) decision, which overturned a law passed by the Catholic-dominated state Legislature making it a crime to sell contraceptives, gave us the concept of privacy (extending surely, said the Court, to inside marriage). Justice William O. Douglas, who wrote for the Court, declined to identify the exact place in the Constitution where privacy was specified, instead resting his opinion on what he termed a "penumbra" that floats above all specified rights.


I'd guess that Roberts never has much liked the Griswold decision, but I'd bet that he would, nonetheless, try to avoid overturning all this precedent. Just the other day, he told the Chair of the Senate Judiciary Committee, the moderate Arlen Specter, of his concern for the stability of the Constitution and called Roe "settled law." More to the point, however, because he is an old Washington hand, Roberts will know that should the Court invalidate privacy at the same time it declares the constitutional right of first trimester abortion invalid, it will have succeeded in drawing the country into a political firestorm the likes of which we haven't seen in more than a century.





Roberts looks to be the kind of jurist who will be sensitive to what the late scholar Alexander Bickel termed "ripeness" (meaning there is a time and place for bold decisions), and will seek only to fine-tune Roe v. Wade leaving alone the larger questions of privacy and substantive due process from which the privacy argument is derived. Roe does offer opportunities for modification. Justice Blackmun, we recall, based his trimester solution on the concept of viability. He writes: "State regulations protective of fetal life after viability ... has both logical and biological justification." Perhaps it could be argued that the trimester model through which Blackmun worked his concept of viability has been overtaken by medical technology, thus changing how we assess viability.


In any case, it seems that President Bush found a bright, careful, personable and thoughtful nominee who more than likely will make judgments that will entirely please neither the right nor the left. Thus expect continued dissatisfaction over Roe; therefore, no let-down in mobilization on the part of the right. Expect also some judicially mandated tightening of abortion rights, but not so much as to provoke the left to hit the barricades.


Just what this White House wanted all along.