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Amanda Marcotte wrote a post last week debunking three arguments she hears from people who don't believe Roe v. Wade is in danger. Although I agree with much of what she says and with her ultimate conclusion, I think she confuses the issue by framing it in terms of whether or not Roe will be overturned, when the more immediate concern is how much damage the Court's anti-choice bloc can do while leaving Roe's guarantee of fundamental right to choose.
I take issue in particular with two things she says. First, in response to the claim that if the Roberts Court wanted to overturn Roe, they would have done so by now, she points out that the Court hasn't directly addressed Roe's validity since Justice O'Connor retired and Justice Kennedy became the swing vote. She concludes that given the opportunity to do so, Kennedy would vote to overturn Roe. Her argument:
But voting to roll back abortion rights isn't the same as overturning Roe. As Marcotte points out, Planned Parenthood v. Casey did a great deal of harm to abortion rights while upholding the right to choose. And Kennedy not only was part of the majority in Casey, he joined the part of Justice O'Connor's opinion arguing that the weight of precedent counseled against reversing Roe. Nothing since has suggested he now wishes to overturn Casey. He doesn't have to. He's turned the state interest in protecting potential life O'Connor articulated in Casey and turned it into a license to ban any aspect of abortion he finds personally icky.[T]he only possibility that Roe will be upheld depends on [Kennedy] not being a completely sexist pig. So, where does Justice Kennedy fall on the "sexist pig" continuum? Well, just this week he voted with the conservatives in Wal-Mart v. Dukes. The argument of the majority was that the only possible way that something could be called "gender discrimination" is if there's an overt policy in a company stating that women are inferior to men. Even in the "Mad Men" era, this wasn't how sexists rolled, so basically the court is saying there is no such thing as gender discrimination. And Kennedy agreed with this. Moreover, Kennedy wrote the last decision the court passed on some kind of abortion legislation, when the court upheld a ban. In his decision, he characterized women as walking wombs who are too stupid and fickle to know that their only purpose in life is giving birth, and so they must be forced to do so by a male-dominated government. That doesn't really sound like the opinion of someone who can be counted on to uphold abortion rights. In fact, when given the chance to do so, he dismantled them.
Does Kennedy have really awful, backwards views about women? Definitely. But whether it's because he believes in some fundamental protection for abortion, even when he personally disagrees with the procedure, or because he's nervous about upsetting precedent, I don't see him overturning Roe as long as it can be avoided.
Second, in response to the argument that Roe is too valuable for getting the base riled up, she points to the recent wave of legislation aimed at rolling back abortion rights and to the blind passion of anti-choice activists and concludes that the ulitimate goal must be total victory. Again, I agree that the end game is abolishing the right to choose. But in the short and medium term, I think she's wrong. Comparing legislatures and activists to courts is comparing apples to oranges. Being a bomb-thrower can be valuable and rewarding for the first two groups. Clever judges know that they're better off being somewhere else when the bomb goes off. Chief Justice Roberts is a master of this skill. His talent for drastically altering established law while appearing to change very little famously earned him the derision of Justice Scalia.
So far a progressive counterpart to the conservative legal movement has failed to develop, but overturning Roe v. Wade would be a powerful catalysts. I suspect Roberts know that, and as long as it's feasible, he'll hand these opinions off to Kennedy and let the abortion rights die by a thousand tiny cuts.
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