Fifty percent of the Republican students I personally like at Duke expressed to me his belief that arguments made by Democrats about the Supreme Court overturning Roe v. Wade constitute “fear mongering.”
Since I usually exist in a liberal bubble of one, talking to myself and my Twitter feed, it was enlightening to hear from those who don’t think Gov. Romney would nominate a justice who would join a majority in overturning Roe. In my opinion, this fear is a totally valid reason to vote for President Obama (if you believe in a woman’s right to choose). But since it’s apparently not a universally agreed-upon likelihood, I wanted to explore this further.
His argument was three-fold: Romney wouldn’t nominate a justice who would overturn Roe, such a nominee wouldn’t get past a Senate held by Democrats and no cases would make their way to the court that could provide an opportunity for such a ruling. He argued that there’s a “1 percent chance” of all of the above happening.
Though I understand his rationale, I still feel that this issue is an urgent one. It takes a number of logical jumps and contingencies to rationalize. You may not consider it as immediate as your personal financial wellbeing, or your access to affordable healthcare or your beliefs about America’s current commitments abroad. But a woman’s constitutionally protected right to choose is being chipped away at in states across the country, and that’s reason enough to consider the legal implications.
First, the most liberal justices on the court (Justices Ruth Bader Ginsberg and Stephen Breyer) are also among the oldest. Were one of them to retire, a President Romney would have the opportunity to appoint her/his successor.
Second, a President Romney would feel pressure from elements in his party to nominate a Justice with conservative cred and a commitment to certain principles. Of course, not every justice can make it past the Senate—there’s a verb, “to bork,” for that—but it’s reasonable enough to imagine a situation in which a President Romney nominated a justice who looked OK on paper and sounded fine in a Senate confirmation hearing but ultimately sided with Scalia, Alito et al. in a reconsideration of Roe.
Third, there are such cases across the country that very well will end up before the Supreme Court. For instance, a case in Arizona will be heard next month by the Ninth Circuit Court of Appeals concerning the state’s 20-week abortion ban. Both Roe v. Wade and another case, Planned Parenthood v. Casey, stated that viability is the earliest point at which states can justify bans on certain types of abortions, at 24 weeks. Arizona’s pre-viability ban bases its justifications on fetal pain and supposedly provides for an emergency exception to save a mother’s life.
The concerning part about this case is that it’s based on disputed science in order to justify otherwise unconstitutional restrictions. Contrary to Roe, it places an “undue burden” on women. It’ll be appealed regardless of the Appeals Court’s ruling, and then we’ll have a case heading to the Supreme Court that cuts at the heart of Roe—how and in what way “science” can be used to chip away at what states can and can’t legislate at an even earlier stage of pregnancy.
The majority of the Supreme Court in Gonzalez v. Carhart (Justices Roberts, Alito, Thomas, Kennedy and Scalia) wrote in their decision (written by the swing Justice Kennedy) that Congress could validly omit a health exception (from the partial birth ban being discussed) even when “some part of the medical community” considers the procedure necessary. To require the exception whenever “medical uncertainty” exists would be “too exacting a standard to impose on the legislative power ... to regulate the medical profession.” So basically, five of the justices on the Supreme Court found it kosher to allow bans based on disputed science. Justice Ruth Bader Ginsburg wrote in her dissent, “The Court’s hostility to the right Roe and Casey secured is not concealed.”
So going back to that conversation I had: This is the chain of events that could take place that make the fears I hold pressing enough to propagate. If that makes me a “fear mongerer,” then call me Scary Spice—but when we’re evangelizing our views to other people, we inevitably use fear (as well as hope) to get them to vote the way we do.
Romney’s had about seven positions on abortion so it’s difficult to pin down exactly what he believes (it’s all a bit Me, Myself and Irene). When running for governor of Massachusetts he supported “a woman’s right to choose,” and yet during the Republican presidential primary he said he’d be “delighted” to sign a bill banning all abortions. Indeed, on “Meet the Press” he said, “It would be my preference that [the Supreme Court] reverse Roe v. Wade.” But recently the Romney campaign is running ads saying he supports abortion in the cases of rape, incest and to save the life of the mother. He’ll believe anything you want him to believe, baby.
Samantha Lachman is a Trinity senior. Her column runs every other Thursday. You can follow her on Twitter @SamLachman.