Now that President Bush has been re-elected, I think it's worth revisiting a subject I wrote about during my first stint as Freespace Guest Blogger: to what extent is the right to abortion seriously at risk? Note first that I deliberately use the phrase "the right to abortion" and not "a woman's right to choose" or some other mischaracterization of the issue. (For further discussion of this particular issue, see my post from my previous Guest Blogger stint, where I explain how I am pro-abortion, yet find the pro-abortion movement inherently more dishonest and annoying than the anti-abortion folks.) It's interesting to note, incidentally, that this is a subject that's almost impossible to discuss in person. Most pro-abortion folks are so defensive and hyper-sensitive that they immediately label someone as "anti-choice" at the first hint of something that might be less than unequivocal enthusiasm for abortion. Well, let me state again for the record - for what it's worth - that I am pro-abortion, but certainly not enthusiastically. I offer this information only to disarm those who may be inclined to interpret this post as an "anti-choice" rant.
Now on to the real issue. To what extent is the right to abortion genuinely at risk now that Bush has won a second term? In order for abortion to become illegal, the following would have to happen: 1) At least two new judges are nominated to the Supreme Court (I say two, because all accounts suggest that Rehnquist will not be with the Court much longer; if he is replaced with a pro-abortion justice, it will not change the status quo), 2) both nominees are anti-abortion, 3) the nominees survive the entrenched confirmation process, overcoming staunch Democratic filibustering and a Senate undoubtedly on the lookout for the abortion sentiments of all nominees, 4) a case comes before the Court that presents an opportunity to overturn Roe v. Wade and its progeny, 5) the Court accepts that opportunity, and 6) certain states adopt legislation making abortion illegal.
Most people seem to think that (1) is a likely scenario, but I'm not so sure. Certainly Rehnquist does not appear likely to remain on the Court through Bush's second term. But wouldn't this make it more likely that Stevens, the oldest justice on the Court at 84, would be more inclined to remain beyond Bush's term, health permitting? The country seems so on guard against a threat to legalized abortion - and possibly rightly so - that such a scenario seems plausible. The same logic could be applied to O'Connor, whom some label a conservative but who is also firmly on the pro-abortion side. In other words, I don't think it's such a given that even two justices will leave the Court within the next 4 years.
At the same time, (2) is not a foregone conclusion either. While it may be in Bush's interest to appoint two anti-abortion justices, he knows that the Senate and the nation are on guard against it. I certainly couldn't envision him nominating a judge who is pro-abortion, but I also think he wants his nominees to be confirmed, and he knows that it will be significantly more difficult - if not impossible - if he selects judges who are anti-abortion.
Still, I fully expect the Democrats to block all Bush nominees, regardless of their publicized feelings about Roe. Even if the nominees professed to support Roe or if there were absolutely no indication that they were anti-abortion in any way, the Democrats would still be convinced that they were wolves in sheep's clothing. I can't imagine any nominee being confirmed, given what's transpired with Bush's judicial nominees over the past few years, and given the Democrats' visceral hatred of all things Bush.
Certainly, if new justices were confirmed, it would not take long for a case to reach the Court, so (4) is not much of an obstacle. However, I believe that (5) is. Where is the supposed anti-abortion majority going to come from? After all, it was Kennedy who got cold feet when faced with the chance to overturn Roe in 1992. Why, after 12 more years of Roe becoming ingrained in the national identity, would he suddenly decide to change his mind. Even Rehnquist, he of the firm dissent in Casey, recently stated that it is getting more and more difficult to overturn Roe, precisely because it has become such an ingrained part of the American psyche. (Incidentally, I find it telling that the media largely ignored this comment. In fact, it so ignored it, that I can't event find a link to it! If anyone can find one, please let me know - the quote is from earlier this year.) In the end, then, we've got a grand total of two justices - once Rehnquist is no longer on the Court - who we can confidently assume would be willing to overturn Roe v. Wade.
So we don't even need to get to (6), whether states would make abortion illegal. I think it's clear that many of them would, for what it's worth. But that inevitability just creates more incentive for the militant pro-abortion armies to never let it reach that point.
It's not unimaginable that (1) through (6) could all take place. But I don't expect it to happen. Still, it will be interesting to see how the Court changes shape over the next four years, if at all.