In 1973, the United States Supreme Court legalized abortion in the case of Roe v. Wade. In that decision, the Court basically said that a woman could have an abortion with few restrictions until the point of viability (24 weeks).
Over the years, the Court has changed but the majority has continued to reaffirm the basic decision. However, the Court has also approved restrictions on the abortion procedure. For example, they have declared that state legislatures can impose “parental consent” laws, that 24 hour waiting periods are constitutional and they have outlawed the “partial birth abortion” procedure. Still, at this point, on the basic issue of legal abortion, the count is 6 in favor and 3 against.
Now, some pro-choice groups argue that the score is really 5 in favor of legal abortion and 4 against because they count Justice Kennedy as a swing vote. That may be true. I am no constitutional law scholar. On the other hand, it could be fundraising hype. You know, scare folks so they’ll send money.
No matter what headcount you believe, the pro-choice movement could be in trouble, even though we have a pro-choice President.
As you have heard, Justice John Stevens has announced that he is resigning from the court. Stevens has been a solid pro-choice vote. President Obama will soon nominate a new justice to fill that slot.
Here’s the problem. In the past, Presidents have nominated justices thinking they had a particular ideology, only to find out later that the opposite was true. Justice Stevens was nominated by Republican President Gerald Ford and was considered a Republican himself. Well, he turned out to be one of the most liberal justices on the court. Unless that nominee has a long history of legal decisions, it is often hard to know what to predict.
On the other hand, if Obama nominated a clear pro-choice justice (like Diane Wood), then the pro-life groups and others would be up in arms. And, while a filibuster is rarely used when it comes to Supreme Court nominees, the tone on Capitol Hill is anything but normal these days.
So, to avoid a possible confrontation, Obama might nominate someone who is not as clear on the issue. And who the hell knows what could happen after that?