The XX Factor

After Citizens United, Is Roe v. Wade Next?

In theory, the Supreme Court’s profoundly plutocratic ruling in Citizens United v. FEC upends a century of campaign finance reform and overturns dozens of state laws. But in practice , since corporations are loath to alienate customers and shareholders with political attack ads, the decision may have scant effect on election outcomes.

So what’s the big deal then? For many of us on the left, what is most troubling about Citizens United -apart, of course, from its anti-democratic spirit and dubious legal justification -is that it reveals just how aggressively the Republican justices are willing to tear into decades-old precedent to pursue their own reactionary agenda, once they’ve got that crucial fifth vote. Reproductive rights advocates have begun sounding the alarm , arguing that this bold move does not bode well for Roe v. Wade . Like campaign finance reform, abortion has been a longtime bête noire of conservatives. With Kennedy firmly in their pack, some analysts say, Roberts and company will finally be free to deal the fatal blow to abortion rights by eviscerating Roe and its progeny.

I’m not so sure. With a few notorious exceptions, the Roberts Court has tread lightly on high-profile cases, narrowly interpreting the law to avoid important constitutional questions. While some ascribe this trend to Roberts’ feigned “umpire”-style minimalism, it may well be that Roberts et al. simply haven’t had enough votes to advance their ultraconservative jurisprudence. In Citizens United , lawyers shrewdly spun the issue as one of censorship, a clever overture to “swing” Justice Kennedy and his known soft spot for free speech . Thus far, however, Kennedy has given court watchers no indication that he is likely to supply abortion foes with that crucial fifth vote. He is, after all, one of the authors of Planned Parenthood v. Casey , the 1992 decision that kept the core of Roe intact.