Abortion Slips Back onto the Agenda

When Bush first rose to the presidency, I never would've thought that we'd be sitting around five years later wondering if abortion rights will be curtailed. I thought that they'd've been long gone by now. I figured that a couple of Supreme Court justices would retire fairly quickly, and Bush could waste no time in molding it into his own image. Boy, was I wrong.

There was no turnover in the Supreme Court until his second term, so we're a bit behind the schedule I expected. But Bush has had a chance to appoint a couple of right-minded justices to the court, and the wingers are starting to get excited about the possibilities. On Tuesday, the Court agreed to hear a challenge to a 2003 law that banned some abortion procedures, particularly dilation and evacuation abortions. So far it's been struck down by six federal courts because it doesn't have an exception to protect the health of the mother, but the Supreme Court doesn't have to follow the same precedents those lower courts did. In 2000, the Court struck down a similar law in Nebraska by a 5-4 vote, but all indications suggest that Alito will join antiabortion justices to uphold the law, health exception or not.

But that's just the opening act. Also this week, South Dakota passed a law in almost direct opposition to Roe, banning almost all abortions in almost all circumstances. Rape or incest? Tough. Health of the mother? Should've thought of that before you got pregnant. This is a big, old softball served up to the Supreme Court to knock out of the park and overturn the original Roe v. Wade decision. If the South Dakota law makes it to the Court, it's expected that Anthony Kennedy will be the swing vote (that's assuming that no one else on the Court--including John Paul Stevens, two months shy of his 86th birthday--resigns or dies between now and then). In 1992, Kennedy joined Justice O'Connor in surprising everyone by voting essentially to reaffirm Roe in Planned Parenthood v. Casey. But he was among the four mentioned above who voted in Stenberg v. Carhart to uphold the Nebraska law limiting abortion. Depending on how the particular issues are framed and argued, it seems to me that Kennedy could come down on either side of the South Dakota law.

Many progressives are reassuring themselves that conservatives don't really want to ban abortion, because it would just end up backfiring on them. While the possibility of it backfiring is certainly possible, I've long since learned not to put anything past this administration, which seems to thrive on brash, in-your-face maneuvers that are too brazen and audacious to question. Progressives have been stunned by what they otherwise termed unbelievable before, and they will be again. Abortion could be gone before we even know what hit us.