Thursday, April 19, 2007

SCOTUS' Abortion Decision

After reading yesterday's 5-4 Supreme Court decision upholding the constitutionality of Congress' so-called "partial-birth abortion" ban, I did a post over at TPMCafe suggesting, among other things, that the majority's excrutiating effort to reconcile the decision with SCOTUS precendents on abortion might slow down the inevitable conservative drive to overturn those precedents and eliminate any constitutional right to choose.

Unsurprisingly, most published reactions to the decision have avoided such nuances, and treat it as an unambiguous victory for the effort to definitively roll back abortion rights. Both sides in the abortion wars have perfectly legitimate reasons (the sub rosa criticism of basic abortion rights in the majority opinion) and less legitimate but understandable reasons (the desire to view any SCOTUS abortion decision as potentially apocalyptic) for taking this position. But they should all at least read the opinions and consider the future possibilities.

Of all the criticisms I got for suggesting a less than clear victory for anti-abortionists, the most interesting was from National Review's Ramesh Ponnuru (one of my few remaining conservative friends these days), who said this at The Corner:

He [Kilgore] argues that "the failure of Alito and Roberts to join the concurring opinion by Thomas and Scalia calling for a reversal of all these precedents [Stenberg, Casey, and Roe] means that a further change in the Court will probably be necessary to produce a more fundamental shift in the constitutional law of abortion rights." Well of course a further change in the Court is necessary, since Justice Kennedy has given no indication that he has rethought Roe or Casey. Alito, Roberts, Scalia, and Thomas do not a majority make. But are we warranted in concluding that Alito and Roberts aren't for reversing those cases when a case that presents the issue comes up? I don't see why we would conclude that. And whatever their reasons for not making a judgment of the issue now, their silence actually makes it easier to confirm another conservative justice in the future.

Ramesh clearly thinks the status-quo structure of the majority opinion is just a function of Justice Kennedy's position, and that Roberts' and Alito's "silence" on the underlying issues represents a neutrality on Roe that they will abandon once a fifth vote materializes to overturn it. This is an impressively honest assertion of the dishonesty of the two Bush Justices' current attitude towards this most important constitutional issue--a dishonesty that many abortion rights advocates also assert.

I continue to think that the more Kennedy, Alito and Roberts say in published opinions that they respect Roe and its successor decisions, the harder it will be for them to overturn these precedents. But I'm clearly in a minority on that, at least now.
-- Posted at 5:00 PM | Link to this post | Email this post

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