Is the court already 5-4?
The reason that there’s been so much focus on abortion this election season (though often in covert terms, such as wingnuts going to great extents to praise Palin mother and daughter for what they perceive as a choice to give into the patriarchy, though it must be understood that pro-choice people can choose teenage motherhood or to have a child with Down’s), because McCain needs the fundies to win, and the fundies are aware that the next President is almost surely going to appoint the justice who will be the swing vote if The Sole Supreme Court Decision Of All Time is challenged. Sadly, people have become numb to warnings that Roe is fixing to go because it’s taking so long to happen. There’s an irony there—it’s fashionable to say Roe was badly decided, but in fact, one reason that it’s so hard to overturn is that the reasoning in it is sound and popular, and anyone who wants to overturn it will have to find a way to do so without threatening the traditional respect for precedent shared on the court and without alarming the public by telling them upfront that the right to privacy is now kaput. (They’ll learn that after the fact.) So incrementalism has been the key. Instead of getting ban-happy, anti-choice activists nibble at the sides, creating enough confusion that a clever judge can finally overturn Roe once and for all without actually overturning it. John Roberts is that clever sort of asshole, actually. Without much public fanfare, he pulled a stunt that all but overturned Brown v. the Board of Education (at least as the court has always understood it) by citing Brown as precedent. It was not just evil, but with a dash of hateful irony. That’s how right wingers roll these days, and that explains why South Dakota and Colorado aren’t waiting for a definitive 5-4 anti-Roe court to be appointed to start banning abortion. I suspect that they trust that Roberts will get it done for them.
And after reading Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court, I’m inclined to see why they’re jumping the gun. I’m not wholly convinced that Roe has majority support on the court. It’s always assumed that Souter, Stevens, Ginsburg, Kennedy, and Breyer are pro-Roe votes, and that Roberts, Thomas, Scalia, and Alito are anti. But I’m skeptical that Kennedy is really a secure vote. His support for Roe was established because he was part of the majority that refused to overturn Roe when challenged to by the ACLU in 1992 during Casey v. Planned Parenthood, but he’s no stalwart defender of women’s rights. For one thing, Casey opened the door to the incrementalist strategy, by practically daring states to come up with as many silly laws as possible to shut down clinics and frustrate patients so that they couldn’t take enough time off of work (or raise enough money) to get abortions, returning us to something close to the pre-Roe state where easily accessed abortion was a privilege of the well-off, while the working poor have to scramble. Kennedy hates abortion, but he signed onto Casey out of a respect for precedence, and I suspect if someone like John Roberts were to give him an argument that upholds a ban while still maintaining official respect for the right to privacy, Kennedy will be on board.
I have evidence for this claim. There’s a reason that the Roberts court appointed Kennedy to write the opinion upholding the “partial birth” abortion ban, and I suspect it was to let the anti-choicers know that they have a live one. The argument that Kennedy uses in Carhart exploits the biggest weakness in Roe, a weakness that Ruth Bader Ginsburg has pointed out, which is that it doesn’t protect abortion by arguing that women deserve equal protection. So the anti-choicers have really amped up the idea that abortion hurts women, that women and men are so fundamentally different that they have to have a different set of rights , because women can’t be completely trusted to make their own medical decisions like men can. Kennedy was all over this idea that the government needs to see women as a class whose rights should be constricted for their own good, as Dahlia Lithwick explains:
Justice Anthony Kennedy’s majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.
Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban……
What hasn’t changed is that Anthony Kennedy finds partial-birth abortion really disgusting. We saw that in his dissent in Stenberg. That’s what animates and drives his decision. His opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they’d all refuse to undergo it. Since they aren’t, he’ll decide for them.
What’s kind of crazy about this is that later term abortion bans are the kinds that are medically indicated. The Inconstant Woman argument—that women are inferior decision-makers to men, and so their decisions have to be constricted by the state for their own good (as Lithwick points out, Kennedy rejected Ginsburg’s solution to the “women are so stupid” problem, which is to provide women detailed information about the procedure they’re about to undertake and leave the final decision up to them)—actually makes more sense for early term abortions that are usually done for pure choice reasons, and so you have more opportunity to play the “what if” game later. Which is precisely why I’m not sure Kennedy can be trusted. Women, being human, regret all sorts of things—choice of school, marriage, divorce, abortion, having a baby at the wrong time, whatever—but anti-choicers would have you believe that abortion is a special kind of regret that you can’t take back, and if they can convince Kennedy of it (actually, he sounds convinced already), they might be able to pull it off. For what it’s worth, I fail to see how especially a decision you can’t take back. In brutal, blunt terms that will no doubt make a lot of people uncomfortable, it’s a lot easier of a decision to rectify than many. For most women, it’s easier to get pregnant again and go through with it that time than it is to get out of a bad marriage, and certainly you can’t undo it if you have a baby and it turns out that it would have been smarter to wait. (In fact, for a lot of women, having an abortion is a mixed bag if they want children in the future—abortion isn’t fun, but it is a relief to know that you can do it if you want to in the future.) Yes, it’s true you can’t have the exact baby you would have had if you hadn’t had an abortion, but that’s also true that you won’t have the exact baby if you had sex in a different position and some other sperm got there first, so there you go. What baby you get is always a spin of the roulette table, and most women understand that.
It’s not like a huge danger. Kennedy is going to be loath to read all the headlines about how it’s not that women are fickle, but that he is, supporting Roe in 1992 and overturning it later, and that might stay his vote. But either way, it’s important to elect Obama. The pro-Roe side of the bench is older than than the anti, and it’s likely that the next President will be filling some seats. But we also need to protect against the inconstant Kennedy. Maybe if we have a three-fer in D.C. with both houses of Congress and the Presidency in Democratic hands, we can finally pass the Freedom of Choice Act that would stall state-based challenges to abortion rights before they even get to the court.