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March 09, 2006

Are You Ready For The Big National Abortion Debate?

Personally, I'm not, but here it comes:

A showdown over abortion rights is heading to the states as some governors and legislators prepare for a challenge to Roe v. Wade.

Earlier this week, South Dakota Gov. Mike Rounds signed legislation banning most abortions, exempting only cases when the mother's life is in danger. Mississippi Gov. Haley Barbour says he will sign such a ban if it also excepts cases of rape and incest. Lawmakers in eight other states are considering similar steps.

Those state officials, like conservative activist groups, are emboldened by a rightward shift throughout the federal bench during the Bush administration. As a result, they show increasing willingness to test the staying power of the Supreme Court's 1973 Roe decision, which placed abortion rights within the Constitution's privacy protections. Its reversal would clear the way for a state-by-state battle over whether, and under what circumstances, abortion could remain legal.

"You're going to see a growing number of states take on the courts," said Tony Perkins, president of the Family Research Council, a voice for religious conservatives. "We see this as an issue that should be decided by the states."

Some states have been preparing for years. At least four, including Louisiana, have so-called trigger laws on the books, which would immediately make abortion illegal if Roe v. Wade is overturned. Four other states are considering such laws.

I appreciate the honesty of the anti-abortion advocates -- they say what they mean and mean what they say -- but allow me for a moment to celebrate dishonesty.

There is an election coming up. The Republicans are on the ropes, and their one big trump card -- national security -- seems, at least at the moment, to be in the hands of Congressional Democrats.

I think there's something of a Pauline Kael effect going on among abortion foes. She famously quipped that she didn't understand how Nixon had won, as no one she knew had voted for him. I don't think abortion foes are at that level of disconnect, certainly, and further, I think they would say that doing the right thing is more important than doing the popular thing. But I'm not sure they realize how unopopular a full repeal of Roe would be in the country now.

For 75% of blue-state women, it's virtually the only issue. That may be overstated, but abortion rights are important to just about every woman who grew up north of the Mason-Dixon line, east of the Mississippi, or west of the Nevada deserts.

Putting abortion in play now will cost Republicans seats in Congress. Blue-state districts that would happily vote for Republicans because of taxes, crime, etc., will now swing towards the Democrats.

Furthermore, I don't see how this actually advances pro-life goals. There are only two confirmed votes against Roe on the Supreme Court-- Scalia and Thomas, who both consider the decision a very bad one (which it is, of course) and who are quite willing to overturn it. Kennedy may or may not agree with the original decision, but he believes the debate has been settled, at least as a legal matter, by the opinon, and he is unwilling to disturb Roe.

Which means that even if Roberts and Alito voted to overturn Roe, there would be only four votes to do so. And I'm betting that one or both of them adopts the Kennedy-O'Connor position -- it may have been a bad decision, and some additional restrictions are constitutionally permissible, but the core of the decision -- that a woman has a right to an abortion under most circumstances, by constitutional diktat -- is now protected by 30+ years of stare decisis.

So, ultimately, the best the pro-life forces can hope for is four anti-Roe votes-- which would actually be the worst they could hope for, as it would immediately show that yes, in fact the next justice appointed to the court will decide the issue, and of course all Democrats (and all moderate Republicans in the Gang of 14) would deem that an "extraodinary circumstance" permitting a filibuster. Indeed, I'm pretty sure that is the one "extraordinary circumstance" they envisioned when crafting the deal.

And if there are fewer votes to overturn Roe -- if Alito or Roberts join with the liberals -- then it depresses the pro-life part of the conservative base, which trusted Bush to appoint pro-life justices.

I just don't see any practical or political good coming out of this push. As Bush said, the nation is simply not at the point at which it is prepared to overturn Roe v. Wade. There is always the lure of "doing the right thing" and "moral victories," but if the Senate or House or both fall to Democrats, that will be rather minor consolation.

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posted by Ace at 04:00 PM

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