Ducks in a Roe

The Roberts appointment to Chief Justice and whomever fills O’Connor’s seat raises little concern for me with regard to Roe v. Wade. In fact, one pro-choice theory has it that the best thing that could happen for abortion rights is for Roe to be overturned. If you dig into this, you’ll see that it’s one of the most tenuous decisions ever handed down by the court. It’s hanging by a very thin thread of a shredding black robe, if you don’t mind a sloppy stab at a little metaphor.

First of all, if overturned, abortion laws would bounce down to the state level. Of the 21 states that would likely ban abortion, seven have democratic governors. But here’s the kicker: What Republican congressmen and senators throughout Washington know and fear is that much of their constituencies are indeed a silent majority who favor abortion rights in spite of a very vocal and active few who protest against them. I think what we’ll see on social issues in the near future will be much more blue than red.

Congress will shit itself if Roe v. Wade is overturned because all of their protestations and posturing will not be backed by their constituencies. And they’ll all look like vote-grabbing politicians when their voters force them to reverse their position and pass abortion rights legislation. Point is, Congress doesn’t want this burden; they want it to remain in the judicial branch, which, unfortunately because of the weak “right to privacy” argument made in Roe, is not where it currently belongs. (See these links:

http://writ.news.findlaw.com/lazarus/20021003.html
http://writ.news.findlaw.com/lazarus/20030123.html
http://writ.news.findlaw.com/lazarus/20040916.html)

We need a stronger argument than Roe. And I don’t think the court, whomever comprises it, will take on a case any time soon that doesn’t preserve the Roe decision. It’s not the right time, and it is political.

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