Threat to Roe exaggerated

April 15, 2003|By Steve Chapman

CHICAGO - It's been two months since Senate Democrats began a filibuster to block the federal appeals court nomination of Miguel A. Estrada, and they are willing to persist until Dick Cheney grows a full head of hair.

Judge Estrada has not been caught smoking pot, molesting interns, cheating on his bar exam, or anything else improper. All he has done is arouse suspicions that once on the bench, he will behave like a conservative.

Behind this fear is a bigger fear: that Judge Estrada, if confirmed, will be appointed to the next vacancy on the Supreme Court. Being young, brainy and Hispanic, he might be a perfect choice for President Bush. But not for abortion rights groups. They note with alarm that at his Senate hearing, he refused to disclose his views on the subject. They worry that he'll get to the Supreme Court and then vote against abortion rights.

That's hugely important, we are told, because the court is right at the tipping point. "Legal abortion hangs by a razor-thin 5-4 margin," warns a group called the Feminist Majority. The National Organization for Women agrees that "all of our fundamental rights ... could be at risk with the addition of just one new ultraconservative Supreme Court justice."

It's a powerful rallying cry, but one that has the regrettable disadvantage of not being true. Pro-choice groups have endlessly drummed home the message that Roe vs. Wade, the 1973 decision guaranteeing the right to abortion, is hanging on by a thread.

As someone who thinks unborn children are not disposable products, I would like to think that Roe's days are numbered. But the abortion-rights zealots are actually wrong twice over. In the first place, there are not five justices who are on record in favor of preserving the decision in Roe, there are six. And even if Roe were overturned, it would not mean the end of abortion rights. It would merely mean that they would be entrusted to democratically elected institutions.

The claim that the court is divided 5-4 on keeping Roe rests on a wild misrepresentation of what the court did in a landmark decision three years ago, when it struck down a Nebraska law banning partial-birth abortion. In that case, it's true, the court did rule by 5-4. But the opinions of the justices actually confirmed Roe's secure status.

Three justices in that case voted to uphold the Nebraska law on the grounds that Roe was a mistake and should be undone immediately.

Five justices, on the other hand, said the law was invalid because it conflicted with Roe. "The Nebraska law imposes an undue burden upon a woman's right to make an abortion decision," they concluded, and therefore had to be junked.

So eight justices are accounted for. What about the ninth? That was Anthony Kennedy, who agreed with the dissenters that the Nebraska ban on partial-birth abortion was not unconstitutional - making the vote 5-4. But Justice Kennedy didn't share their view of Roe. In fact, he went out of his way to reaffirm his support for it. "Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability," he wrote.

Justice Kennedy didn't say there is no constitutional right to abortion. He just thought the Nebraska ban, which covered one rarely used and particularly grotesque abortion method, didn't violate that basic right.

So the court is split on Roe by a 6-3 margin, not 5-4 - meaning that at least two new justices would be needed to put it in jeopardy. But pro-choice groups insist on distorting reality to exaggerate the supposed threat.

They also pretend that the Supreme Court is the only thing keeping abortion from being forbidden everywhere. But if the court were to reverse Roe, it would not outlaw a single abortion anywhere in America. All it would do is give states the option of regulating or proscribing it - something that many, if not most, would refuse to do.

Whatever President Bush or Judge Estrada may think about Roe vs. Wade, it's not going anywhere anytime soon, and neither are abortion rights. But some people just can't take yes for an answer.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

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