The Feminist Majority Foundation sent me a fundraising email which claimed that “The fate of Roe still hangs by ONE VOTE on the Supreme Court.”
The FMF is lying. Currently, the Supreme Court is 3-6 in favor of Roe (or, to be technical, in favor of Casey) (The three anti-Roe votes are Rehnquist, Thomas, and Scalia). The “fate of Roe” hangs by two votes, not one.
As much as I admire the FMF, lying in a fundraising appeal is unethical and inexcusable.
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So how “in danger” is Roe? Well, if Bush wins re-election, and if two of the current votes for Roe retire (O’Conner and Stevens are plausible possibilities), then it’s possible that Roe could be overturned. Bush could replace O’Conner and Stevens with pro-lifers.
Or could he? The Senate Democrats would probably filibuster an overtly pro-life Supreme Court nominee. But they might not have the numbers to sustain a filibuster; in 2004, more Senate Democrats than Republicans are up for re-election, making it likely that Senate Republicans will increase their majority.
At one time, I thought that Bush would probably not choose to seat justices who would overturn Roe, because such a ruling would probably benefit democrats in many elections (including the 2008 presidential election). However, the last few years of watching President Bush govern has convinced me that whatever else I dislike about Bush, he doesn’t lack for political courage. On issues from pre-emptive invasion to ridiculously huge tax cuts, Bush has been willing to take extreme steps; he might well do the same on abortion.
Overall, I can’t dismiss the possibility that a Bush re-election could lead to Roe v Wade being overturned.
Of course, even if Roe is overturned, that won’t mean that abortion will be illegal nationwide. It’ll be outlawed in some states, and many states that won’t outlaw it will pass laws making it much harder to obtain abortions (look for laws to be passed forbidding married women from getting an abortion without their husband’s permission, for example). Still, some states – mostly in the Northeast and Northwest, where women have higher status – will continue to have legal abortion.
So even if Roe is overturned, abortion won’t be outlawed entirely. It will be outlawed enough, however, to significantly worsen the lives and reduce the freedom of many American girls and women. That alone is reason enough to vote for John Kerry, in my book.
(If we’re really lucky, Kerry will be elected and get a chance to replace Rehnquist with a pro-choice justice. However, that’s pretty unlikely; Rehnquist wouldn’t voluntarily retire with a Democrat in the White House).
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UPDATE: You know, I can’t beleive I forgot to post this bit of news, which was what has brought the issue to mind this week: It turns out that Roe v Wade was very nearly overturned in 1992., in the Casey decision.
As the late Justice Blackmun’s private papers, which were just released last week, show, Rehnquist had put together a five-member majority for overturning Roe and had actually written a draft of his majority opinion when Justice Kennedy switched sides.
Which makes me awfully glad that Bork, who almost certainly would have voted to overturn Roe, was turned down by the Senate. Kennedy, you’ll recall, was nominated after Bork’s rejection.