Is Roe safe? Absolutely not.

By Amanda Marcotte
Wednesday, June 22, 2011 12:27 EDT
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I have to admit, I was genuinely surprised that readers of this blog showed up in comments on this post to spread the glib myth that abortion rights aren't actually under real threat in this country.  This is a myth that has two major proponents: glib liberal men who use it as a way to insinuate that pro-choice activists are hysterical bitches who need to calm down and let a rational male presence set their priorities, and people who voted for Ralph Nader and don't want to admit that there's any difference between Democrats and Republicans, which requires pretending that the Supreme Court appointments don't matter. Ironically, these two couldn't be more different in many ways, but they share a glibness that I suppose causes the sort of dogpiling-based-on-ignorance that was occurring in that thread.

But in fact, abortion rights in general and Roe v. Wade specifically are in very real danger.  I thought I'd do a quick sheet running down the glib attacks on this claim, and why they're wrong.  

If the Roberts court was going to overturn Roe, they would have done so already.  This one was strongly insisted upon!  But I kept asking, until the insister gave up, what court case gave the court this opportunity.  The court hasn't actually considered the state right to ban or severely restrict abortion since 1992, with Planned Parenthood v. Casey.  That decision was a devastating strike against abortion rights in and of itself, because it was decided by a Republican-controlled court, but the presence of Sandra Day O'Connor meant there wasn't a complete overturn of Roe.  The court simply hasn't had a chance to overturn Roe.  But that's about to change.  Realizing the court is actually in their favor, anti-choicers have been busy passing legislation in the states that directly challenges Roe, because while glib liberals don't think it could be overturned, anti-choicers who have held off on overt challenges for two decades strongly disagree.  An attempt at an outright ban failed in South Dakota and again in Louisiana, but states are passing laws that declare fertilized eggs "persons" or ban abortions pre-viability on the made-up grounds that a fetus at 20 weeks can feel pain.  If just one of these laws goes up to the Supreme Court, it opens up the possibility of a Roe overturn. 

The conservatives have five seats on the court if that happens, but one of them is a slightly more moderate conservative, and the only possibility that Roe will be upheld depends on him not being a completely sexist pig.  So, where does Justice Kennedy fall on the "sexist pig" continuum?  Well, just this week he voted with the conservatives in Wal-Mart v. Dukes.  The argument of the majority was that the only possible way that something could be called "gender discrimination" is if there's an overt policy in a company stating that women are inferior to men.  Even in the "Mad Men" era, this wasn't how sexists rolled, so basically the court is saying there is no such thing as gender discrimination.  And Kennedy agreed with this.  Moreover, Kennedy wrote the last decision the court passed on some kind of abortion legislation, when the court upheld a ban.  In his decision, he characterized women as walking wombs who are too stupid and fickle to know that their only purpose in life is giving birth, and so they must be forced to do so by a male-dominated government. That doesn't really sound like the opinion of someone who can be counted on to uphold abortion rights.  In fact, when given the chance to do so, he dismantled them.

Meh, okay, even if the current court is anti-choice, don't worry.  Obama is going to win and his appointees will be pro-choice.  Look, I'm not one of those paranoids who think that Obama is secretly a member of the religious right, and I agree that given a chance, he'll appoint pro-choice justices.  His two appointees have been pretty liberal, in fact.  But this argument depends on being completely ignorant about the make-up of the court and Obama's likelihood chance of replacing an anti-choice court member with a pro-choice one.  So, conceding the highly disputable point that Obama is going to win in 2012 (really, it's far from certain, people!), the question is what justices are likely to die or retire between now and 2016.

And the answer is, in two words: the liberals. 

The indominatable Ruth Bader Ginsburg is the only justice that's really in poor health.  She suffers from pancreatic cancer.  Two of the conservative judges are getting up in years, but they're both in good health and it's far more likely than not they'll still be serving into their 80—and both turn 80 in 2016.  The odds are against Obama making another appointment.  Now, obviously someone's health can take a turn for the worse, causing them to pass away or retire, but I just wouldn't bank on it.  Especially not when you consider that they have the best health care imaginable.  As I noted in comments, the technology that keeps Dick Cheney alive is so advanced that he actually doesn't even have a heartbeat. If you take a random group of three elderly men, sure, it's a safe bet that one of them will suffer from poor health and have to retire in the next four years.  But that's not so certain with Supreme Court justices, who have access to fake hearts and the like. 

Republicans don't actually want to kill Roe v. Wade.  They need it to keep the base going. Ah yes, the Thomas Frank argument. This was more plausible before a) a Republican-controlled federal government arbitrarily banned one abortion procedure, mostly because it was the safest way to perform later term abortions b) Republicans showed how seriously they hate reproductive rights by focusing most of the House's energies into attacking them in 2011 c) Bush's appointment of a bunch of rabid anti-choicers to the bench and d) the explosion in anti-choice legislation on the state level that has dramatically raised the odds that Roe will be reconsidered in the Supreme Court by said anti-choice radicals.  Considering that Republicans have basically made abortion illegal for many classes of women, I think it's safe to say they really don't have a problem with banning it.  Yes, they like to reserve the right to have one for themselves, but that will still be there for them post-Roe, because while abortion will eventually be illegal in most states, you could always travel to New York or California, if you have the money.

This argument fundamentally misunderstands what motivates the religious right.  The assumption underlying this argument is that anti-choicers oppose abortion because they oppose abortion—which is it takes seriously their facetious claims to be "pro-life", even though they don't care much if fetuses die in women who are civilian casualties in our wars or fetuses who die during illegal abortion.  Or even fetuses who die during miscarriage.  And if you believe their blather about "life", you might think they'll pack up and go home when abortion is banned. 

But if you believe, as I do, that the religious right are in fact a bunch of culture warriors for whom abortion has become a symbol of all their resentments about sex and women's liberation, then you have to assume that not only would they not pack up and go home after abortion is banned, but that they would be emboldened to start demanding more, which works out really well for Republican organizers.  Imagine Roe is overturned.  Will women's hemlines start cascading downwards, will women quit their jobs en masse to become housewives, will teenagers quit fucking, will women who carry to term while single give up their babies for adoption now, will cohabitating couples get married, will half the adult women who are living without a spouse now renege and get married?  No.  Banning abortion actually does nothing to change any of these things that the religious right hates, because none of these are caused by abortion rights.  Hell, women will still be getting abortions.  The religious right gets that the fight is only just beginning, and already they're moving on to Phase II: Attack on Contraception.  That's what all this Planned Parenthood shit is about.  The widespread enthusiasm for attacking Planned Parenthood shows that anti-choicers will switch off from abortion to contraception without missing a beat.  

So, in fact, for Republican party organizers, banning abortion is the best possible thing that could happen.  It signals to their base that they can get big wins, and emboldens them to give more money and organize harder in order to roll that win up into the next one.  


So there you have it, folks.  I hate to be the bearer of bad news, but Roe is definitely in real danger.  If you want to be complacent, the better strategy is to figure it's out of our hands anyway, and to let it go.  But I don't think that it really is—the more people who take this seriously on the ground, the more obstacles we can put up between anti-choicers and actually getting a case in front of the Supreme Court.  Look at what happened in South Dakota.  Voters were able to keep a challenge to Roe from reaching the court by overturning a ban on abortion the legislature passed.  And that's all because people weren't complacent. 

Amanda Marcotte
Amanda Marcotte
Amanda Marcotte is a freelance journalist born and bred in Texas, but now living in the writer reserve of Brooklyn. She focuses on feminism, national politics, and pop culture, with the order shifting depending on her mood and the state of the nation.
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