Roe on the Ropes
by Stephanie Kuenn

No one thought she would step down first, not even President Bush.

When the Supreme Court's head marshal notified the White House that a sealed envelope was on its way, everyone guessed it would come from Chief Justice William Rehnquist, who, by all appearances, is losing a battle against thyroid cancer.

But it wasn't Rehnquist, who remains mum on his plans. It wasn't John Paul Stevens, the court's 85-year-old liberal anchor. It wasn't Ruth Bader Ginsburg, who has battled colon cancer in the past five years. It was Sandra Day O'Connor, the first woman appointed to the court and the court's moderate voice of reason in several controversial cases with deep implications for affirmative action, race relations and the death penalty. But what strikes fear into the left is that O'Connor was one of the slim majority who consistently upheld the right to privacy with regard to abortion. It seems highly unlikely that anyone who James Dobson — I mean, President George W. Bush — will nominate will uphold her views, putting reproductive rights at risk.

Just a few weeks after the 40th anniversary of Griswold v. Connecticut, the same reproductive rights that this case guaranteed appear to be in jeopardy.

Ill-informed pharmacists and doctors have grabbed headlines by refusing to fill birth control prescriptions on so-called moral grounds, citing "conscience" laws passed by four states (and under consideration in eleven) that allow them to refuse treatments they consider immoral. Some have refused pills to unmarried women (who may be taking them for reasons other than preventing pregnancy), while others have refused to prescribe a variety of methods, believing it equivalent to abortion. Many of the refusals center on Plan B, a two-pill regimen taken after unprotected sex has occurred. Plan B gives the patient an infusion of hormones to prevent ovulation or fertilization or inhibit implantation — it's not an abortificant and will not harm or terminate an existing pregnancy.

While it's easy to write this off as the actions of a marginal group of right-wing religious kooks, it's not. The fight to determine when life begins is the heart of the new battle for reproductive rights. Medically speaking, a pregnancy begins when a fertilized egg is implanted in the uterine wall. But for a growing number of pro-lifers, life begins when the egg is fertilized. It isn't just that the ultra-conservative portion of the right wants to see Roe overturned; their misunderstanding of medicine is leading them to block anything that stops conception.

A woman's right to use hormonal birth control and to terminate a pregnancy is protected by the right to privacy, according to Griswold and Roe, respectively. But a number of conservatives disagree that there is, in fact, a right to privacy, as it's not specifically named in the Constitution. Justice Antonin Scalia (the President's "favorite justice") says that privacy exists in some cases but cannot be applied to reproductive rights.

O'Connor is not necessarily an advocate of abortion rights, having cited problems with Roe in the past. But she did vote with the majority to strike down 2000's Stenburg v. Carhart, which overturned Nebraska's partial birth abortion ban because it had no provision for the health of a woman, and in 1992's Planned Parenthood v. Casey, which affirmed Roe in a narrow 5-4 decision, although it did allow for greater restrictions to be put in place.

To be fair, one of the four who voted against Casey has since been replaced by Ruth Bader Ginsburg, who would side with the majority on Roe. But without O'Connor and with a new pro-life justice, Roe holds a slim 5-4 majority, assuming the makeup of the court stays the same until a pro-choice President takes office — something that's four years away at best. Given the age of most of the court and Rehnquist's precarious health, this seems unlikely. If the federal partial birth abortion ban comes before the court, and it probably will, Stenburg will be overturned, as O'Connor was its pivotal fifth vote. (Anthony Kennedy dissented, along with the three conservatives: Scalia, Rehnquist and Clarence Thomas.)

President Bush, for all his teeth gnashing about the activist judiciary and not having a litmus test, will nominate someone who subscribes to the far-right agenda and follows the tradition of Scalia and Thomas. It's in keeping with every other nomination he's made, whether to the federal bench or the United Nations. The "culture of life" will be supported by whoever he nominates. Bush knows who helped get him this second term. He thinks about his legacy constantly, and being known as the Guy Who Ended All Abortion will make him a conservative saint. This is where that famous political capital will be spent.

But the costs to the American public are great. It's not enough to worry about Roe v. Wade. That's not the ultimate goal, as we've all been lead to believe, but just the start. With O'Connor gone, two justices well into their twilight and Bush in office, a woman's right to make her own decisions about her body is more threatened than ever.

E-mail Stephanie Kuenn at smkuenn at gmail dot com.