Justice Roberts and the Roe vs. Wade Litmus Test

MY Word

As published in The Oakland Tribune

July 31, 2005

Justice Roberts and the Roe vs. Wade Litmus Test

The President’s Supreme Court nominee, John G. Roberts Jr., a Harvard Law School graduate elevated to the influential District of Columbia Federal Circuit Court in 2003, was confirmed by the Senate after he acknowledged that Roe vs. Wade is “settled” law. As an attorney for the governement, he had earlier argued that Roe was wrongly decided.

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

This piece was also posted on “The Policy Think Site”

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Copyright © 2005 by Jay B. Gaskill

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Jay B. Gaskill, attorney at law, via e mail: law@jaygaskill.com

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