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.

By Anne Martens Sept. 24, 2005