There is an interesting theory which has been postulated by some, that Bush actually will look for a judge who will not overturn Roe v. Wade. Jeffrey King over at Three Bad Fingers has an excellent piece this morning on this idea articulated by Jack Balkin. Marty Lederman finds Balkin’s argument persuasive, but Jeffrey isn’t sold.
Balkin:
Bush must decide if he wants to overturn Roe or preserve the Republicans as the majority party. With Roe gone, the pro-choice movement will be energized and Republican politicians will have to state on the record whether they want to criminalize abortion. Women, libertarians, and moderates may bolt the party, destroying Bush’s winning coalition. Republicans may dislike Roe, but they may dislike losing elections even more.
A far more prudent strategy, and the one the President and his advisors will likely adopt, would be to appoint Justices who will preserve Roe but chip away at it slowly [more…]
King:
If this were the President’s strategy, he would have to abandon a repeated campaign promise. The abandonment of this promise will not only put off religious conservatives, but also libertarians, property rights advocates, gun enthusiasts, security moms, law and order champions, and armed service members.
All of these groups have seen the Living Constitution evolve to eat away at rights and issues they value. Each of these groups are waiting with anticipation additional originalists on the Court. Each of these groups will be greatly disappointed if President Bush abandon’s his promise to nominate strict constructionists, in the mold of Scalia and Thomas.
The proposed judge Mr. Balkin outlines is not an originalist. Roe and Casey were wholly dependant upon the doctrine of Substantive Due Process. It is in this doctrine that the Living Constitutionalist finds the constitution protects whatever rights they value. This doctrine is mutually exclusive from strict construction. So, to fulfill Mr. Balkin’s prediction, President Bush would need to either nominate a Living Constitutionalist, or an originalist who is willing to abandon her convictions for political gain. Neither is acceptable to me, the President’s base, or the President. [more…]
But Marty Lederman finds Balkin’s argument persuasive.
This would, in other words, effectively overrule Casey’s adoption of Justice O’Connor’s “undue burden” test — a facial test that has been understood to depend on the scope of a statute’s unconstitutional effect across a range of individual applications — and to relegate pregnant women to case-by-case “as applied” challenges.
Tom Goldstein doesn’t think Roe is hanging by a thread with O’Connor’s replacement.
It seems to me that pro-choice activists who, in an attempt to mobilize their supporters, say that Roe itself hangs by the thread of a single vote are wrong. To be sure, the most recent abortion decision that directly presented the question — Casey — was five-to-four, with Justice O’Connor voting to reaffirm Roe. But subsequently Justice Ginsburg replaced Justice White, leaving a two-vote majority against overruling Roe. Thus, the four dissenters in Stenberg expressed their willingness to approve significant restrictions on abortion, but only three — the Chief Justice and Justices Scalia and Thomas — would have formally overruled Roe. The most that a new Justice can do — barring a change of heart by Justice Kennedy, who also voted in Casey against overruling Roe — is accordingly to make the question five-to-four once again.
Drew McKissick makes a similar point.
… one justice won’t make a difference here…since the last time the issue was broached we’ve had Justice White (anti-Roe) replaced by Ginsburg (pro-Roe)….so we’re still in a 5-4 “pro-Roe” situation. And if/when Rehnquist retires, we’ve got the same situation, (anti-Roe holding its own).
And despite Barbara Boxer’s rhetoric (”It means a minimum of 5,000 women a year will die.”), Drew also notes that:
The other point is that, if Roe were ever overturned, it wouldn’t “end” abortion…it would simply return the issue from whence it was kidnapped by an activist court over 30 years ago…the democratic/political process. More specifically, the state legislatures.
Pro-abortionists Dawn Johnson and Pamela Harris are concerned though, with a very similar argument that Balkin made (see above).
The precise nature of that danger is difficult to capture in a five- or even ten-second sound bite, but the danger is real. Simply put, the Justice who replaces O’Connor will determine for many women whether or not the promise of Roe remains meaningful. That is because there is more than one way to “overrule” Roe. The Court could retain some semblance of protection for women, including protection from blanket criminal bans on abortion, but also allow the government to impose numerous restrictions that in practice, and in combination with private interference, could make legal abortion services far less available, more expensive and more dangerous. For many women seeking to terminate pregnancies, the practical differences between approaches would be consequential.
…
The question for the coming confirmation battle is not only whether the new Justice will vote to overrule Roe, but whether he or she will define and apply the undue burden standard in a way that deprives many women of Roe’s underlying protections.
They also note that:
Ayotte v. Planned Parenthood is already docketed for next term; Stenberg’s demise could be but months away if the President picks the right candidate.
On a somewhat related note, this is an interesting piece about the relative safety (for the mother, not the baby) of abortion v. childbirth.