MY
Word
As published in The
Oakland Tribune
Justice Roberts and the Roe vs. Wade Litmus Test
The
President’s Supreme Court nominee, John G. Roberts Jr., a
Will
Roberts be confirmed again? The President has a working majority in the Senate,
and the democratic leadership has promised not to filibuster another judicial
nomination except in an “extreme” case.
Roberts’ Senate opponents will be looking for something to hang their
hats on, a slip of tongue or a “new” revelation that will justify a filibuster.
The smart money is on confirmation because the Roberts' nomination can't
reasonably be sold as an "extreme" case, just a conservative one.
Everyone
is aware that jurists on the High Court tend to take unexpected paths. Once they are appointed they are no longer
answerable to any political pressures, just to the force of the arguments and
their own evolving sense of polity and judicial philosophy. With or without
another conservative vote, the High Court will move slowly and with great
respect for its own precedents.
But
change is inevitable.
Roe
vs. Wade, a 1973 decision authored by
Justice Blackmun (Rhenquist
– the next expected vacancy on the court, dissenting), established a fragile
social consensus, one that pro-life forces still resist. But the Roe decision has been less of
a barrier to pro-life legislation (think of partial birth abortion and parental
notification) than the later cases that took the Roe doctrine to its
outer pro-choice limits.
Roe actually permits states to bar abortion during the period
of the pregnancy when the fetus is “viable” outside the mother’s womb. “If the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during
that period, except when it is necessary to preserve the life or health of the
mother.” Viability was presumed by Roe to occur during the third
trimester of pregnancy. But that was in
1973.
Fetal heartbeats are detected as
soon as eight weeks after conception. As
medical technology advances, fetal viability is being sustained earlier
and earlier in the pregnancy. We can reasonably expect that advances in medical
technology will allow a fetus to be delivered and kept alive closer to the
first trimester than the last.
So the technological clock is
running, and the Supreme Court will eventually be forced to reconsider its
guidelines in Roe. It is impossible to predict how any justice
would attempt to reconcile the Roe precedent to new medical
evidence five or ten years hence.
Given the forthcoming Rhenquist vacancy, the stakes for “choice” vs. “life”
advocates can only get higher.
I suspect that the Roberts
confirmation will be followed by a Rhenquist retirement and a huge dustup over
the next nominee, probably someone like Janice Brown, a conservative African
American jurist, formerly of the California Supreme Court and now a member of
the DC Circuit Appeals Court.
Again, the question will come
down to whether the opponents can successfully engineer a filibuster. And
again, the smart money will be on confirmation.
Jay Gaskill, an
Alameda attorney, was Alameda County Public Defender 1989-1999
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Copyright
© 2005 by Jay B. Gaskill
For permission to copy, publish, distribute or
print, contact:
Jay B. Gaskill, attorney at law, via e mail: law@jaygaskill.com