Roe v. Roberts

Anne Martens

I am adamantly pro-choice. Let that be clear from the outset. Pro-choice activists in Oregon and elsewhere are my friends, both personally and professionally. I’ve canvassed for money for an abortion clinic in Oakland, I’ve had several friends who have made the choice to have an abortion, and I have a family member whose pre-Roe abortion left her sterile. I’m laying out my pro-choice street cred now because there are a number of issues on which I disagree with abortion activists’ current message.

Today’s NARAL rally at Ecotrust was billed as a discussion of John Roberts and “what’s at stake for American freedoms, such as the right to privacy and a woman’s right to choose under Roe v. Wade.” Speakers included national NARAL President Nancy Keenan, State Representative Mary Nolan, NARAL Oregon Director Michele Stranger-Hunter, Multnomah County Chair Diane Linn, and two citizens (one old, one young) who shared their personal stories.

Everyone agreed that John Roberts will be confirmed as the next Chief Justice of the Supreme Court, but there was still an exhortation to call Senators Wyden and Smith and tell them to vote no. I’m not sure why, frankly it seems like a waste of time at this point, but I also think Roberts is a good pick.

Nancy Keenan, NARAL’s national president, noted the general public feeling of “a conservative for a conservative [Roberts for Rehnquist] – what’s the big deal,” responding that the big deal is that the Chief gets to choose who writes the decisions. This strikes me as a reach for an argument, as Rehnquist was a conservative with that same power, and he still picked O’Connor to write Casey (the 1992 case that reaffirmed Roe).

My view is that Roberts will be a good justice, not because he’s a conservative for a conservative, but because he’s ridiculously smart and an excellent lawyer, he handled the Senate Judiciary Committee with such slickness that anyone who’s ever had to answer questions is secretly jealous, and odds are that once appointed he won’t be anyone’s ideologue. Strategically, I think it hurts the Dems to spend too much time opposing him.

Given that Roberts will be confirmed, there wasn’t much discussion of him, and the movement seems to have already moved on to the next fight. Keenan called O’Connor’s seat the “holy grail,” because O’Connor was the swing vote and had protected choice in the past. While Roberts has served to bring attention to the abortion debate (and a ton of traffic and new members to NARAL), they will focus more of their energies on the next appointee in the hopes of subjecting him/her to more intense scrutiny.

Whether the pick to replace O’Connor warrants heavier energies and more intense scrutiny depends, of course, on who the nominee is. It’s a good idea to be prepared for some woman-hating, 1950’s-yearning, sexuality-repressing uber-conservative (though I’d be surprised if the nominee was really such a wing-nut), but it’s never a good idea to fight for the sake of fighting just because you’ve already picked a side.

While I believe that abortion is important and I will fight like hell to protect it (see street cred, above), I do not believe it is the most important issue facing the Court in the next ten or thirty years. Questions of federalism and technology potentially have far reaching effects on individual rights, and I don’t want to see other important issues obscured by a tunnel-vision focus on abortion. NARAL’s raison d’etre is to keep the focus on abortion, but Senate confirmation hearings ought to have a broader view.

That said, the stakes are high. Ayotte v. Planned Parenthood will be before the Court this upcoming term. The case involves a parental notification law in New Hampshire that provides exceptions to parental notification only if abortion is necessary to prevent death of the woman or by judicial bypass. The District Court found that the law was unconstitutional because it placed an undue burden on the right to choose. The First Circuit affirmed because the death exception was too narrow and there was no exception to protect the health of the woman. The questions presented to the Supremes will be whether the judicial bypass can protect the health of a woman and whether the “undue burden” standard is correct, as opposed to a standard that would only invalidate a law if it is shown to be valid “under no set of circumstances” (as in, the law is never ever valid in any imaginable scenario – that’s a really high standard to meet). The “undue burden” test, by the by, came out of Casey, which is one of these precedents that Roberts said he would respect.

So, Ayotte is scary because it could throw out the protection that women now have to access an abortion without restriction if it’s necessary to protect their health. It’s also scary because it could dramatically raise the standard that the pro-choice side would have to meet to legally get rid of unconstitutional restrictions on abortion. It also sucks because it’s exactly illustrative of why Roe was such a poorly written decision to begin with.

Roe set up the ongoing debate by framing the rights of the woman against the rights of the fetus, based on an arbitrary timeline (trimesters) that wasn’t developed by any doctor, and argued that the woman’s rights are stronger towards the beginning while the fetuses rights get stronger towards the end (the inverse proportion theory of rights protection). Herein lies the problem, along with decades of vehement personal and political arguments, that can now never be solved without a complete reworking of Roe. Which ain’t gonna happen.

The likelihood of Roe being overturned is slim to none, not because it protects a fundamental right of privacy or women’s autonomy over their own bodies, but because it is such a political galvanizer for both sides.

Keenan talked not about Roe being overturned, but about it being eviscerated. She pointed her finger at the right wing and said, “abortion is their issue,” (this from the President of NARAL). They (the right-wingers) now have an ideological grip on the White House and they will not stop until not only abortion but also birth control is outlawed. State Representative Mary Nolan noted that the right cannot afford to get rid of Roe because it’s so useful to them in raising people and money. Methinks the same goes for our side.

The point about Roe being eviscerated and not overturned is a good one. The best way to get rid of rights is not in one dramatic fell swoop, but slowly and incrementally while people aren’t paying attention. Hence your parental notification laws and your late-term laws and so forth until there’s no choice left in the right to choose.

Representative Nolan also made the point that as federal protection for abortion is whittled away, activity at the state level becomes more critical. Oregonians have four times refused restrictions on abortion at the ballot box (most recently in 1990), but there are two prospective ballot measures (#51 and #52) that are awaiting signature collection for 2006. And we need to keep voting for pro-choice state legislators, governors, and attorneys general in order to protect the legality, access to and safety of abortion in Oregon.

So here we are. There are real attempts to erode a woman’s right to control her own body here in Oregon and nationally. There is a new Chief Justice who may or may not be what varying interest groups think he is. There will be another new Justice, about whom we know nothing except that both sides are gearing up for a fight. And abortion remains, for the foreseeable future, an issue on which there can be no middle ground.

  • Rev. Spitz (unverified)
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    FYI: This is a thread about the Supreme Court and the role that abortion politics plays in it. It is not a thread for discussing when life begins or the morality of abortion. Please stay on topic. -Editor.

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    there was still an exhortation to call Senators Wyden and Smith and tell them to vote no. I’m not sure why, frankly it seems like a waste of time at this point, but I also think Roberts is a good pick.

    A "good pick" based on his ability to avoid answering questions, and the Bush administration's ability to keep his record hidden in shadows? Slick isn't the same as smart, and I'd like to see more evidence of how he's "ridiculously smart." Having plowed through a number of his decisions, he comes across as aloof and arrogant, divorced from the consequence of treating the law as an interesting parlour game. That his "mentor" chose to shut down the ballot-counting in Florida, and that Roberts himself was an avid participant in what was, in fact, a grave constitutional crisis for democracy...doesn't make me feel warm and fuzzy.

    Sometimes you need to vote on principle, not political expediency, or --oh no!-- fear of having your vote tallied on the losing side. Of course all Democrats should vote against Roberts. That it's at issue is why the Democratic Party keeps getting sand kicked in its face, and why some of us still looking for leadership in the Democratic Party start to despair at the future of the party. Playing wimp is not a good strategic move, and not attractive.

    Calling Smith, though, I've gotta say, is giving credence to the lie that he's a moderate, and would even care about the call.

  • scooter (unverified)
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    Very impressive column Anne. I agree with a lot of your points. It has always bothered me that the left's position on abortion is exactly the same as the right's position on gun control - no regulation, no matter how sensible, is acceptible. As a father, parental notification what really leads me to shake my head - I have to sign permission for my daughter to get her ears pierced but not to have an abortion...how illogical is that? Just like the NRA, NARAL never met a regulation they ever liked, no matter how reasonable.

    I agree, Roberts seems like a good choice. I think that when we use abortion as our sole litmus test it undermines our credibility, and frankly it just isn't the most important topic in the world today.

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    Scooter: the problem with the often repeated pro-life talking point/earring example is that your daughter would never find herself in a life threatening situation if seeking an illegal earpiercing.

    Here's the thing: women from families with healthy communication are going to tell their parents anyway; women who don't often have very real reasons for not letting their folks know. And the undeniable fact is that in states with parental notification laws, there are very real, specific examples of women seeking dangerous illegal abortions because of not wanting to tell their partents and dying as a result.

    Bad policy has real life consequences - and I think Anne's point that the right's strategy is to incrementally go after abortion piece by piece is well taken. Clearly, that's what's happening. But I don't think she's saying - although you are - that parental notification is some thoughtful compromise.

  • scooter (unverified)
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    charlie...yes, I'm saying that most reasonable people think parental notification (with some court alternative) is a good idea. I also think that most reasonable people think that some regulation of handguns is a good idea. My point was that NARAL and the NRA are both against any "incremental" regulation, no matter how reasonable most people think they are.

    Back to the SCOTUS....my bet is that Roberts won't over-rule Casey or Roe, but he will vote for reasonable "incremental" regulation that makes sense to people like me who don't belong to the right or the left.

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    reasonable "incremental" regulation that makes sense to people like me who don't belong to the right or the left.

    Sorry, but there's no perfect middle, just a muddle. It's not about "parental notification" but about control. Forcing a girl to get permission for an abortion from a father who's raped her is not "reasonable."

    A woman's right to control her body should be absolute. As should be my right to control my body, as should be your right to control yours.

  • LT (unverified)
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    Back to the SCOTUS....my bet is that Roberts won't over-rule Casey or Roe, but he will vote for reasonable "incremental" regulation that makes sense to people like me who don't belong to the right or the left.

    The question is the definition of reasonable.

    Justice O'Connor wanted to prevent undue burden on women. Is that "reasonable"? Some states have passed parental notification legislation where an advocate goes with a minor to notify her parents. The bills proposed in Oregon are often like SB 1126 a decade ago which had paperwork requirements and created a cause of action for parents to sue if not adequately notified. The 3 Republican state senators who voted against that bill a decade ago were tort reform advocates as were some of the House opponents. One said in a speech something like "Why are we creating a cause of action which does not now exist by proposing this bill while others are trying to pass tort reform to limit causes of action?".

    I would hope O'Connor's standard holds in a Roberts court. I would hope when it came to any parental notification laws that might reach the Supreme Court there would be questioning about the wording and not just the generalized "reasonable "incremental" regulation that makes sense to people like me" or talk about how reasonable people support parental notification.

    It will be interesting to see if Roberts (former Supreme Court advocate) will pepper the lawyers with questions or allow them to speak for more than a minute and complete a thought rather than questions from the bench before the lawyer has completed the first sentence of opening argument.

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    I would hope O'Connor's standard holds in a Roberts court...It will be interesting to see if Roberts (former Supreme Court advocate) will pepper the lawyers with questions or allow them to speak for more than a minute and complete a thought rather than questions from the bench before the lawyer has completed the first sentence of opening argument.

    But isn't it interesting that all we can do is "hope" and think it "interesting to see" where Roberts stands? One hell of a job interview by a Senate charged with "advise and consent."

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    I would hope O'Connor's standard holds in a Roberts court...It will be interesting to see if Roberts (former Supreme Court advocate) will pepper the lawyers with questions or allow them to speak for more than a minute and complete a thought rather than questions from the bench before the lawyer has completed the first sentence of opening argument.

    But isn't it interesting that all we can do is "hope" and think it "interesting to see" where Roberts stands? One hell of a job interview by a Senate charged with "advise and consent."

  • Gil Johnson (unverified)
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    I see where Sen. Leahy said he is convinced that Roberts will not pursue an ideological agenda on the court. If this is the case, why are all the righties who express a clear ideological agenda such big supporters of him?

  • Karl (unverified)
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    To me the abortion issue is a red herring. Concerns of Roberts stand on RvW are over shadowing other things I find very troubling about him. Why did the white house refuse (illegaly in my view) to release all the papers involving him? Why didn't he recuse himself from making a favorable decision to the administration while he was being interviewed by the administration for nomination to the court? He has opinioned that rights not expressly given to the people in the constitution don't belong to the people. That covers a lot more territory than privacy. It also makes him more of a radical than a conservative.

  • Becky (unverified)
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    I'm concerned about Roberts for one reason - he's been an insider in the same circles as people like Grover Norquist and the other "neocons" for a long time. His record shows me he's a player, and players put the game before the people. I don't like that one bit.

    On a lighter note:

    Q: What did President Bush say when asked his position on Roe Vs Wade?

    A: "I don't care how those people get out of New Orleans."

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    scooter

    I'm a reasonable person -- and a mother of a teenage girl -- and I don't think parental notification with a court alternative is a good idea. Teens with good family communication will talk with their parents anyway. Those too scared to do so are much more likely to seek an illegal abortion than to discuss things with an unknown judicial official.

  • C2TBF (unverified)
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    Anne - You are correct. Don't let the bastards get you down. All that good pro-choice energy should be channeled into the legislative process where it belongs (including constitutional ammendments if necessary). Roberts SHOULD BE the ideal pro-choice candidate because he will protect properly-enacted legislation. Pro-choicers just need got off their collective ass as well as their collective high-horse and walk the legislative beat with more respect for the consitutional process of our representative democracy.

  • Bill Holmer (unverified)
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    Frank Dufay: A woman's right to control her body should be absolute. As should be my right to control my body, as should be your right to control yours. But that's not what Roe vs. Wade says. The whole basis of the opinion is that there are competing interests between the mother, who shouldn't be forced to be an unwilling incubator, and that of the fetus, who shouldn't be killed for the convenience of the mother the day before delivery. That's the basis for the whole concept of viability of the fetus and the legal division of pregnancy into three trimesters, with different rights in each trimester.

    Some conservatives will never condone abortions, no-way no-how. However, others would be less inclined to overturn Roe if the original opinion regarding the rights of the fetus were respected by the supporters of abortion rights.

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    But that's not what Roe vs. Wade says. The whole basis of the opinion is that there are competing interests between the mother, who shouldn't be forced to be an unwilling incubator, and that of the fetus...

    I wasn't suggesting Roe v Wade was anything but what it is. I was giving my own personal opinion. (Or, as a button my daughter wore says: US out of my Uterus.

    The standard should be people's bodies are their own, but giving in to "moderates" on the issue --and I suspect Roberts is far from moderate on this-- leaves us with a muddle. Sorry...its my body. Sorry...its my daughter's uterus. Nobody's business but our own.

    What comes next is overturning Oregon's Right to Die rules, as anemic as they may be.

    <h2>We can compromise to try --ever so hard-- to win over the Right and Righteous on this...I'd prefer to see us take an uncompromising stand for personal liberty.</h2>

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