Justice John Paul Stevens looked great the last time I saw him, celebrating his eightieth birthday, playing the back nine of his life, where the important games are won. He is the Court's leading liberal and its oldest member; he was considered a moderate when I worked for him twenty-two years ago, which is more a measure of how far the Court has moved than how far he has. His tennis game is still sharp, for which I am grateful, since his good health may be what stands between American women and a major setback for reproductive freedom.
For years, feminists have sought to draw a link between the presidential election, the Supreme Court and reproductive freedom. You vote for the Court when you vote for President. You're voting on Roe v. Wade. That's what we say. And it never works. When you hear candidates giving speeches about the Supreme Court, it better be Law Day, or it means they're in trouble.
So here we go again. What will happen if George W. Bush is elected and another Justice or two retire? Will middle-class women lose the right to take a pill or undergo a procedure in doctor's offices that will terminate unwanted early-stage pregnancies?
Probably not.
Will abortion again be illegal in America?
Probably not.
Will doctors across America be locked up for what are now routine procedures?
Probably not.
At the same time, we can expect even more severe restrictions on a woman's right to choose. Right now, there are three votes on the Court to get rid of Roe altogether and often four or five to impose costly, chilling and burdensome regulations on the exercise of that right by the patient and her doctor. The trimester approach of Roe, which recognized the mother's health as the only legitimate basis for government regulation prior to viability, has given way to an "undue burden" test, applicable to all regulations. Government is no longer required to be neutral with respect to how a woman exercises her right to privacy.
In states where legislatures are antichoice, abortion statutes get loaded up regularly with all kinds of time, place and manner restrictions, consent forms and waiting periods, and even bans on procedures, like the legal creation of a "partial-birth abortion." Then the Supreme Court sorts it out. What is more striking than the creativity of the various approaches is how easy it would be for them to win even more than they do if they just added a few "life or health of the mother" clauses here and there. They know that, too.
"Life's not fair," Jimmy Carter declared, when the Supreme Court upheld the right of state and local governments to deny public funding to poor women seeking abortions. In the years since, it's gotten more unfair. In the future, if George W. Bush wins, it will get even more unfair.
What Roe v. Wade now means is that if you're lucky enough to live in a place where doctors aren't afraid to do abortions and you have the money to pay for one, you don't have to bring cash in a plain envelope. It's safe and legal, until viability. In Los Angeles, you can open the phone book.
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