O’Connor and the Abortion Battle

It’s always hazardous putting out predictions, but Will Saletan’s take on the Supreme Court and abortion is, in all likelihood, exactly right. The Republicans are too scared to install a Supreme Court that would overturn Roe v. Wade; it would be the biggest disaster for their party in decades. (The last time Roe was facing imminent danger, back in 1989, turned into an electoral disaster for Republicans.)

On the other hand, incremental restrictions on abortion seem to be quite popular, and the GOP will have no trouble gunning for justices who approve of those bits. So Sandra Day O’Connor—who wasn’t the swing vote on Roe, but was the swing vote on a variety of other parental notification and partial-birth abortion rulings—will likely be replaced by a hard right social conservative, as a sop to the evangelical base. Ditto with William Rehnquist, when he retires. But if John Paul Stevens—who would become the crucial swing vote on Roe—happens to retire under Bush’s watch, the president may well nominate Alberto Gonzales or someone else who would uphold Roe. That would keep the “base” agitated and frenzied for years to come, without leading to electoral disaster.

On the other hand, even the partial restrictions on abortion that O’Connor’s replacement is likely to uphold will prove extremely harmful. But it’s also not clear that liberals can in practice do much to stop those restrictions, short of the Democrats retaking the presidency or winning over public opinion. Not in a million years will Bush nominate a Supreme Court justice who intends to strike down parental-notification laws or partial-birth abortion bans and, sadly enough, he has the bulk of voters on his side. That puts liberals and pro-choicers in a bit of a bind.

Meanwhile, one much-neglected story on this Supreme Court business, as Jordan Barab points out, is that O’Connor’s replacement is likely to be even more business-friendly than the already-quite-business-friendly O’Connor, and a variety of labor protections and workplace safety laws could draw heavy fire. Michael Scherer discussed the grand strategy at work here in Mother Jones two years ago. That’s the sort of thing that would certainly resonate with millions of voters—big business isn’t nearly as popular as people think—and liberals would be well-advised to point this out while they figure out how to win the abortion battle.