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The Right Stuff


Perhaps you are correct, and maybe I (being the author quoted above) am merely "deluding myself". I suppose only time will tell. But, while fully recognizing that this will not be in line with many of your readers' thoughts/feelings, allow me expound on my views.

As a 100% through-and-through pro-choice Republican, the ramifications of potential Bush judicial nominees is obviously of some concern. However, it was only one facet of my decision on who to vote for. As much as I have disagreed with some of GWB's beliefs/policies, I eventually found him to be the better choice of the two candidates. I was forwarded an interesting letter from a woman to the Democratic Party. While not agreeing completely with all of her premises, this woman's letter does a SUPERB job in summing up how I, and I believe many other "non-born agains" felt... don't let the media fool you into thinking this election was all 'morals based':

It really is a must read for everyone: http://fromasadamerican.blogspot.com/2004/11/how-you-could-have-had-my-vote.html

Now, moving back to the abortion issue. First and foremost, there is a huge misconception in our country.

Many people (actually an amazingly large percentage of people) often say they think that if Roe v. Wade is overturned, abortion is then illegal. Simply not true. But, it is a very common misconception.

Let me say that again... Overturning Roe v. Wade is NOT the same as criminalizing abortion. The day after Roe v. Wade is overturned, abortion is still legal in all 50 states (actually 49... it would likely be illegal in Louisiana under current state law there). Overturning Roe v. Wade simply puts it in the states' hands to decide from the starting point of "abortion is legal".

Overturning Roe only means that the abortion question would become a "political" question - i.e. something decided by the legislative body of each state. Which is fine as a worst case scenario (which it is). Anyone that argues that Roe (and by association, abortion) is a bad law would be hypocritical if they were to say that the Constitution strictly prohibits the practice of abortion. The Constitution is silent on the matter, so one could argue that it truly should be a political, as opposed to a constitutional, question.

Unfortunately, the pro-choice groups have done a very good job of misleading most of the American public as to the recriminations of overturning RvW. Most people think overturning it would lead to its prohibition. This just isn't true.

Which brings us to the question... irrespective of the ramifications, what are the chances it gets overturned? As outlined in Alex's piece, I think they are low. Here are some of my reasons:

1) As a second term president, Bush is less likely to feel pressured to appease the "base" right-wingers.

2) An outright ban takes a critical issue off the political table entirely. The Republicans benefit from the ongoing battle over abortion rights (and not its resolution) because it allows them to lock up support from their base as an election issue. In truth, it mobilizes both bases and one could argue that neither party wants to see the issue definitively resolved.

3) The checks-and-balances system that requires the newly-appointed justices to be approved by the Senate --despite the fact that the current Senate has a slim Republican majority, Supreme Court appointments require a two-thirds majority vote. I personally have a difficult time believing a strictly conservative judge who would actually vote to overturn RvW would be appointed and approved w.o. a filibuster.

4) Current SC, and stance on RvW (age in parentheses):

Ginsberg – Supports RvW (71)
Breyer – Supports RvW (66)
Stevens (84) – Supports RvW
O’Connor (74) – Supports RvW
Souter (65) - Supports RvW

Kennedy – Wildcard (68)

Thomas – Would overturn RvW (56)
Scalia – Would overturn RvW (68)
Rehnquist - Would overturn RvW (80) … likely to be first to go. But would simply be replaced w. another conservative.

SO, in order for Roe v. Wade to be overturned, not only would Rhenquist have to be replaced by someone who is also anti-abortion (which is likely), the votes of two other Justices must ALSO turn (questionable as to how likely).

In summary, the composition of the Supreme Court would have to radically change in order for Roe v. Wade to be overturned. I don't see it happening, due in no small part to the fact that the Senate has to approve the Justices and I don't think more than one anti-abortion judge would be approved, let alone three.

As stated, perhaps I am deluding myself, or perhaps naive. Regardless, I think this country's understanding of the likelihood of RvW being overturned, and WHAT that would mean, has been manipulated by all sides.


Alex Collmer


Thank you for your thoughful response. It seems that the best way to have a debate about the right course for America is by attempting to remove as much emotion from the conversation as possible, which I think you've done admirably.

I hope you're right about the President not having to (or wanting to) appease the far-right base in his second term. Only time will tell, and as the facts do come in through the years to come, I hope that the majority of Americans are capable/willing to look at them objectively. If the President does pursue a radical right agenda, I would hope that a large number of moderate Republicans feel somewhat betrayed and are therefor forced to examine their party allegiance. If not, then I would hope that liberals are capable of admitting that they were overly reactionary, and perhaps even capable of commending the President on his willingness to choose a moderate path that's representative of the majority of Americans.



Not to be argumentative, but this is Republican apologist perspective. First, it’s not completely accurate to say that by overturning RvW this would become a state rights issues. Second, I think based on the decisions of Scalia and Thomas we can conclude that similarly minded jurists would feel free to simply overturn RvW, and perhaps do it in a way that makes abortion illegal everywhere.

The current state of play on RvW surrounds the issue of when a fetus is a human being. If the Supreme Court were to hold that a fetus is a human being at conception, to use an admittedly extreme example, the laws of many states would by their own terms make abortion murder. Understand this is the goal of the right. Of course, the Court could simply overrule RvW and toss the issue back to the states, in which case I think we could fairly conclude that dozens of states would immediately make abortion illegal.

As to the appointment of pro-life Justices, it is clear to me that there are jurists who would simply discard RvW, and some of these jurists may not have long clear records indicating their position. Remember, Justice Souter's views were not well known when he was nominated, and in that case, he turned out to be an enormous disappointment to the right. Imagine the opposite example. We know that we will lose at least one of the Justices who are for RvW, O'Connor who has experienced many medical problems in recent years, and at 84, Justice Stevens is a likely second candidate for retirement. I don't consider it alarmist to assume that these Justices will be replaced by extreme right wing Justices by the President. I also assume that the White House can find jurists whose records are obscure enough to mask their views on RvW, making the political fight a difficult one in the Senate.

Although I am deeply concerned that the balance of the Court will be tilted by this administration, I agree that people should not be single-issue voters. I understand voting on different issues and hoping that the checks and balances will prevent any real damage being done, but I think its important to be realistic about those checks and balances. There is a very real risk that the pieces will be put in place to overturn RvW. This is scary in itself, but the damage a majority of jurists with this perspective could do to civil liberties more broadly is truly frightening.

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