Roberts and Roe

The debate over Judge John Roberts's nomination to the Supreme Court has alternated between speculation about whether he would vote to overrule Roe v. Wade and reassurances that he might not--or, at any rate, that his position on the case would not decide its fate. But for those concerned about women's lives rather than legal abstractions, the crucial issue is being overlooked: To place the lives and health of millions of women at risk, Roberts need not oppose Roe v. Wade itself; his interpretation of its protections need only be slightly more conservative than that of Justice Sandra Day O'Connor's.

To be sure, there is ample evidence that Roberts would follow the model of Chief Justice Rehnquist, for whom he clerked, and vote to overrule Roe outright. Roberts, after all, urged the Court to do precisely that when he served in the George H.W. Bush Administration. But focusing the debate exclusively on the survival of Roe itself allows Roberts to hide in the shadows of speculative questions--even though his patently clear conservatism is considerable cause for concern.

It's technically accurate, though hardly reassuring, that Roe could survive Roberts's opposition by a 5-to-4 majority. But while six sitting Justices do support Roe, only five--including O'Connor--have reliably voted to strike down severe restrictions on reproductive choice. The so-called "partial-birth abortion" ban--a misnamed law so recklessly written that it amounts to a widespread ban on a variety of abortion procedures--is an important case in point. The Court has struck down such bans in the past on the grounds that they didn't protect a woman's health, with O'Connor providing a critical vote for the five-Justice majority. The Supreme Court will soon be asked to review the constitutionality of a new federal "partial-birth abortion" ban that contains no meaningful health exception. Roberts, if confirmed, likely would cast the deciding vote.

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