The Republicans’ ideal Supreme Court nominee is someone who might overturn Roe v. Wade, but won’t. That makes President Bush’s choice of John Roberts pure genius.
If defenders of abortion rights condemn the pick, so much the better. Social conservatives will think they won. And when a court ruling later proves they haven’t, Republican leaders can comfort them. So far, all is according to plan.
Roe vs. Wade is the 1973 Supreme Court decision enshrining a federal right to abortion. If Roe went down, two bad things would happen to Republicans.
One is that it would arouse America’s pro-choice majority. Religious conservatives say they put Bush in the White House, but actually, so did a significant bloc of pro-choice women. We speak of the “security moms” who in 2004 cared more about terrorism than about abortion.
They also never thought the right to abortion was at risk. Bush has always balanced his social-conservative talk with reassurances that abortion would remain available. When he urges abortion foes to fight on, pro-choice sophisticates dismiss it all as background noise.
But serious incursions on the right to abortion would change that. I wouldn’t want to be a Republican politician the day that suburban mothers learn there’s no legal way to end their 16-year-old daughter’s unwanted pregnancy.
The other problem in overturning Roe is that it would send the abortion issue down to the state level. Republicans don’t want angry pro-choice voters rushing to the polls in 50 states. They should recall their clever move last year to put a gay-marriage ban on the Ohio ballot. It was meaningless but did draw more conservatives to the polls, who also voted for Bush. The trick works for Democrats, too.
Roberts will probably sail through his Senate confirmation. He combines the stealth qualities of a David Souter, whose views on abortion were a mystery, with a conservative hesitancy to overturn precedents, seen in Sandra Day O’Connor. He also appears to be a classy guy.
What does Judge Roberts really think about abortion? Nobody seems to know. As deputy solicitor general, he wrote a brief urging that Roe be overturned. But he was just a lawyer-for-hire then, reflecting the views of his client, the first President Bush.
Then, at his 2003 hearing to become a federal appeals-court judge, Roberts noted that Roe was “the settled law of the land.” He also said, “There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”
Even if Roberts joined the anti-Roe side, the ruling is probably safe for now. Most experts see a 6-to-3 pro-Roe majority on the current court. Should Roberts vote against the ruling, a majority would still hold.
All this doesn’t mean that pro-choice groups need not worry about the evolving court. Anti-abortion activists are busily pushing through restrictions on the procedure, some of which the court has upheld.
Many post-Roe restrictions on abortion are outrageous. The bar on federal funding for abortions, which hurts mostly poor women, is a prime example. Bush’s executive order denying federal funds to international family-planning groups that offer abortion is another.
The biggest disgrace, though, is Congress’s ban on almost all abortion services at U.S. military hospitals – even if the woman offers to pay for them herself. That means women serving in foreign countries must go to local hospitals, where the care may be substandard and the natives may not like Americans. Consider: The rich woman in Chicago can end a pregnancy by walking to a first-rate medical facility, but the American soldier in Iraq has to fly herself to another country.
Why should Republicans care about making abortions harder and harder to obtain? Because the easy stuff has already been done. Republicans may not worry much about limiting the abortion rights of the poor, foreigners or even U.S. soldiers (most of whom are from modest backgrounds), but new restrictions would have nowhere to go but up the income ladder. And the upper middle class would not tolerate them.
Astute Republicans know this. Americans at all income levels oppose abortion, but the higher you go, the fewer opponents there are. This is treacherous terrain for Republicans, and Roberts looks like a judge who would not get them into more trouble with the pro-choice majority.
Froma Harrop is a Providence Journal columnist. Contact her by writing to fharrop@projo.com.
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