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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.
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Posted by
Amanda Marcotte on 08:59 AM •
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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 totally agree. I also think Roberts is smart enough to get that done.
We heard a lot, during Carhart and the various similar legal battles, from women who’ve regretted their abortions-though I never got the impression that the women were talking about the procedure in question. But we never seemed to hear about or from the women who had an intact dilation and extraction, and what it meant to them, to be able to way goodbye to a dearly wanted child (and I use the word ‘child’ because, in my opinion, it becomes a child when the woman gestating it decides she wants it-it becomes a child when SHE says so/thinks of it as a child).
So, were the media just ignoring those stories, or did our side decide to argue on the merits, while the other side argued on emotion?
No chance that Kennedy will be the first to retire in an Obama presidency, I guess? Everyone figures Stevens and Ginsberg have just been waiting for a Democratic President so they can retire, but are there any on the right who are getting up there? Scalia, I’m looking at you.
No one on the right is that old that I know of.
Also, it’s obvious that O’Connor regrets her decision to retire, and it didn’t work out how she hoped.
Scalia and Kennedy are <a href=http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States>both 72</a>.
Is there something I don’t know about linking on Pandagon? Mine never seem to come out right…
You need quotation marks around your link. href="www.linkythingy.com"
unless scalia suffers an illness, i don’t think he’s going anywhere, anytime soon. and dear god, thomas, i believe, just turned 60. we’ve got 3 on the left: souter, stevens, and ginsber. souter has been making noises about how he would wants to get out of washington. stevens has been fighting the good fight and is now 88 years old, and ginsberg suffers from some health problems and has been wanting to retire. there isn’t a whole lot of hope to expect a major shift on the court in the next 8 years.
there isn’t a whole lot of hope to expect a major shift on the court in the next 8 years.
Then I guess we go to a defensive fight and hold on to this right for as long as we possibly can. Make it as costly for them as we can. Make them feel pain. Find ways to damage the reputations of the judges who are trying to roll back abortion rights, and damage them widely.
I need to look at this whole strategy, really think about it.
That was the whole point of picking Thomas, Roberts and Alito--they are assholes, and they aren’t old. Thomas comes with the extra-bonus double-plus-good Nego-Self-Hating Kung Fu Grip, which allows them to say their rulings can’t possibly be racist b/c a BLACK MAN voted for them.
Sure he’s just Alito’s second vote, but we know what they think about affirmative action: AA puts unqualified people in positions they don’t deserve because of race or gender. We know they aren’t qualified because NO MINORITY OR WOMAN is as qualified as a white man. That’s why Thomas cedes his vote to Alito, who despite being a WOP is whitish enough to be more qualified.
Is any of the Constitution going to be left after this administration, or is it all going to be NewSpeak Rights to Unfreedom?
JPlum, I remember hearing stories of women who had intact dilations during the Congressional hearings on “late term abortions” before the ban. They heard. They were sympathetic. They still voted to ban D&X;.
Heaven forbid a mother want to hold her dead child before burying it, or actually have a body to bury. Or perhaps preserve her fertility or health.
What selfish sluts they are, killing their baybeeez!
Maybe I’m an optimist, but Kennedy’s career tells me he hasn’t the political courage to become The Man Who Reversed Roe. He’ll sign on for any amount of incremental rollback, but he won’t repudiate his vote in Casey
I agree with rea. Kennedy will hem and haw and chip away at the edifice til the cows come home, but he doesn’t want to be The Man Who Killed Roe. Or, for that matter, The Man Who Killed Brown.
Anti-choicers themselves are divided about whether Kennedy would overturn Roe if presented with the question.
It’s interesting. Several anti-choice strategists say that outright bans a la South Dakota and Colorado are over-reaching and will ultimately solidify a stronger (based on equal protection) pro-choice position on the Court. Hence, the chipping away that has achieved so much and harmed so many.
I suspect it will never be overturned, because it’s a perennial Repub meme useful for energizing the base, and so they don’t really want it overturned.
If they overturn it, it destroys 30 years and more of work demonizing it. They don’t want to waste all of that effort.
They can just move onto contraception, though.
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.
Hey now! It’s not “Colorado” that’s trying to ban abortion. Some of our local wingnuts availed themselves of the ballot initiative process to endrun the legislature and try to demagogue the issue.
Don’t worry, though. We got this one.
They can just move onto contraception, though.
Exactly.
CN may actually be making a common liberal mistake.
CN may be assuming that because what his/her enemy says is insane and counterproductive for society, his/her enemy must not really be serious, and must be cynically spouting empty threats while secretly making other plans.
Liberals should stop making this error. Your enemy does not think like you. Your calculations about their motives need to take this into account.
In other news, Monday, or Sunday last, was the annual Red Mass for Catholic lawyers, judges, and politicians. Roberts, Scalia, Kennedy, and Thomas attended; Alito was absent.
The base wants to overturn RvW. President Bush selected SCOTUS justices to satisfy the base. While it may be true that the Republican conservative politicians prefer the incremental approach as drawing out the electoral utility of being anti-abortion, they must realize that it is out of their hands once they elect a solidly anti-abortion Catholic or Evangelical justice and have 5 reliable votes (I suspect that Kennedy can’t be counted on 100% to oppose all abortion rights).
The politicians have teh gayz and teh A-Rabs still available to stir up the base.
The politicians have teh gayz and teh A-Rabs still available to stir up the base.
Don’t forget the Mexicans, San Franciscans, blacks, unwed mothers, working mothers, the French, Russians, liberals, moderate Republicans ...
There is nothing sacred or constitutional about the number 9. It would be a good thing if the Obama administration established a larger Supreme Court, say 11.
This might have to wait until after the 2010 elections, for a 60+ Senate. But it should be done for all sorts of reasons. The current court is a progressive catastrophe.
JC
They can just move onto contraception, though.
No doubt, and the groundwork is already being laid by rhetorical attempts to redefine contraception as abortion. They got a misogynist faith-healer to run HHS; you think they can’t scare up enough dishonest wingnut physicians to convince Congress that the Pill represents another Holocaust? Imagine Sarah Palin backing up their testimony from the bully pulpit. Any doctor who attempts to inject reality into that debate can be called a babykiller, and it that doesn’t work, there’s always intimidation & death threats from Operation Rescue.
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.
That would certainly be nice, but all it would really do is shift the wingnuts’ “overstepping of their authority” argument from SCOTUS to Congress.
Also, it’s obvious that O’Connor regrets her decision to retire, and it didn’t work out how she hoped
Obv. SCOTUS justices must not be allowed to retire, in case they regret it.
John Casey,
FDR tried that and it didn’t fly then and I would hope that it doesn’t ever.
My numbers have Roe upheld 6-3, but gutted 5-4. (Kennedy and Roberts are the swing votes) This court will not allow the states to criminalize abortion, but there will be no burden short of this that will be considered “undue.”
Contraception is safe for the simple reason that there will be no “test case” to overturn Griswold. Women view their contraceptives in much the same way that Charlton Heston viewed his guns.
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I totally agree. I also think Roberts is smart enough to get that done.