Thanks to Matt for the link.
Here’s what Obama and McCain had to say about abortion rights and Roe v. Wade at last night’s debate:
In other words, neither of them would have “litmus tests,” except that they would.
I know the threat of overturning Roe gets tossed out every election as a way to scare pro-choice voters into supporting Democrats. There’s a market Roe fatigue, I think — and it seems like it’s coming up far less this election than it did in the last one. But the next president will likely be appointing three Supreme Court justices. Our last Republican president appointed two. The entire future of the court rests with this presidency, and that’s not small beans — not just for Roe, but for the face of American law and policy for generations.
Because Roe isn’t just about Roe; it’s about a greater judicial philosophy that influences and extends into our most fundamental rights and liberties.
It’s already been a scary eight years of Supreme Court decisions. Power is increasingly centered in the executive with little oversight, and the valued balance between the legislative, judicial and executive branches has been thrown thoroughly off-kilter. Even the good decisions — like Kennedy v. Louisiana, where the court ruled that you can’t use the death penalty as punishment for child rape, and Roper v. Simmons, which held that it is unconstitutional to execute children, among others — are marked by narrow splits: Scalia, Thomas, Alito and Roberts (where Alito and Roberts were on the court) consistently side together, and consistently produce dissents that promulgate some very scary views.
Throw on even one more conservative justice to replace one of the liberals and we’re in for an incredibly regressive next few decaes. Replace three justices — which is what the next president very well may do — with people in the vein of Scalia, Thomas, Alito and Roberts, and I quite honestly would not raise my kids in the country we’ll likely have.
It’s about much more than Roe. But it’s about Roe, too, and what Roe stands for.
Roe v. Wadeis based on a right to privacy that more conservative justices and students of the law will tell you is made up. And it’s true that nowhere in the Constitution does it say that you have a right to privacy. But part of the reason that we have a Supreme Court is because the Constitution is a fairly short document, and it can’t possibly cover the full range of issues that are going to come up — it demands interpretation. Many of the most important decisions in our nation’s history were premised on rights that aren’t explicitly stated in the Constitution, or that can be evaluated differently under changed social circumstances (Brown v. Board of Ed, Skinner v. Oklahoma and Lawrence v. Texas are two illustrative cases). And, in my view, Constitutional interpretation should err on the side of giving citizens more rights, not fewer. The Framers didn’t detail every minute right for a reason: The idea of America is premised on a broad set of rights and liberties, and the purpose of the Bill of Rights is to restrict the federal government, not to restrict the rights of the people. If we evaluate the language of the constitution based on what it meant precisely at the time of its writing, we’re going to end up with some mighty problematic decisions. If I ever got to sit down with Scalia, I would like to ask him how he would have decided Brown — after all, Plessy was decided not long after the 14th Amendment was ratified. Certainly the justices on the court then were closer to knowing the intent and purpose of the 14th Amendment, and they held that “separate but equal” treatment of blacks didn’t violate the law. That’s Constitutional literalism for you. And Scalia’s former colleague and fellow Constitutional literalist, William Rehnquist, apparently agreed when as a law clerk during the Brown proceedings he wrote:
“I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues but I think Plessy v. Ferguson was right and should be reaffirmed.” He continued, “To the argument… that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.”
That is not a responsible view for Supreme Court justices to take, particularly given the fact that we have a court specifically to make sure that minority groups aren’t railroaded by the majority. “Constitutional literalism,” it seems, is less about reading the actual words and spirit of the Constitution, and more about trying to cram the document into a narrow, conservative ideological box.
As Obama pointed out last night, this isn’t a question about “state’s rights,” it’s a question about fundamental freedoms and our rights as human beings and as citizens. And questions as fundamental as that of privacy and bodily integrity should not be turned to the states to regulate and restrict as they see fit.
What many also fail to appreciate is that overturning Roe wouldn’t just be about Roe or abortion. Unless the Court overturned Roe solely on the grounds that the fetus is a person — which they won’t — they’ll do away with abortion rights by doing away with those much-maligned privacy rights generally. And if there’s no right to privacy that can be inferred from the Constitution, then a whole series of other important decisions are up for grabs. Griswold v. Connecticut, the case securing contraception access for married couples (which was followed by cases securing such access for unmarried people) is premised on the right to privacy. So is Lawrence v. Texas, the case that overturned Texas sodomy laws. Overturn Roe on privacy grounds and there is no longer strong legal precedent to keep the government out of your bedroom and out of your reproductive decisions.
Some argue that overturning Roe wouldn’t be a big deal, because abortion would remain legal in several states. Even pro-choicers and feminists make the argument that Roe is already effectively overturned, because abortion is inaccessible for many women, so we shouldn’t put too much focus on it and just let the Court go.
Well, that’s crap. Abortion is inaccessible or incresingly difficult to access for too many women, and that is a huge problem that requires more of our attention. But 1.3 million women still have abortions every year. A lot of those women go through significant hardship to do so. I’ve met a few of those women, and I’ve walked them out of the clinic. Believe me, Roe still matters. There are levels of inaccessability, and there are a lot of women who live on the fringes. There are a lot of women who live in red states surrounded by other red states, where the only abortion clinic is a five-hour drive and requires a two-day waiting period between visits — but some of them can get there. They can’t get to New York or California. Overturn Roe and those women are thrown under the bus.
And it’s not just a state-by-state issue. There’s a whole lot of talk about “state’s rights” when it comes to abortion, but that talk mysteriously disappears in the Republican Party Platform:
We support a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.
Overturning Roe is just the beginning. The ultimate goal is to make abortion illegal, for everyone, in every state. That’s why the people who argue that we should just drop the “divisive” abortion question, let Roe go and call the matter settled are delusional. For the GOP, overturning Roe is a first step, not a conclusive victory. And if anti-choice groups continue to exercise strong influence over the Republican party, you can bet that outlawing abortion won’t even be the end — contraception is on the list, too.
This is bigger than one election, or one justice, or one issue. It’s about the most fundamental underpinnings of our democracy, and what our country is going to look like for decades. Supreme Court decisions aren’t easily overturnable, and the calls that get made now are going to be with us for the duration of our lifetimes. Many of them will be around for all of our children’s lifetimes, too.
That’s something I hope everyone thinks about when they’re pulling that lever on election day: Who do you trust to appoint the justices that are going to shape the legal landscape of our country for generations?