Rove v. Wade

The political case for an anti-Roe justice.

Is it time for Gonzales?

In the three decades since Roe v. Wad e, pro-lifers have marched, prayed, and licked envelopes in the hope that a pro-life president might change the Supreme Court. Friday morning, they got their wish: Justice Sandra Day O’Connor announced she would retire. Pro-lifers rushed to their computers to declare … defeat. If an anti-Roe justice replaced O’Connor, “there would still be a pro-Roe majority” on the court, said the National Right to Life Committee. “Replacing her will not challenge Roe’s core,”agreed the Committee for Justice. “Abortion Would Still be Legal in 43 States Even if Roe Overturned,”added Americans United for Life.

It’s a strange message: Abortion kills babies—but don’t worry, Roe and legal abortion are secure. Why the reassurance? Because pro-lifers know that if the public thinks abortion might be criminalized again, a lot of voters will start to worry less about Osama Bin Laden and more about Tom DeLay. Some pro-life politicians will lose their jobs. Others will defect and beg for re-election. Pro-lifers know these things will happen, because they happened the last time voters panicked over Roe. That was in 1989, when George H.W. Bush was president. Not until three years later, when O’Connor and her colleagues reaffirmed Roe, did the backlash subside.

Some of my Slate colleagues think George W. Bush can’t risk a replay of what happened to his dad. They think he needs to nominate a moderate to O’Connor’s seat—most likely, Attorney General Alberto Gonzales—to avoid a political explosion over Roe. I disagree. I think Bush has something to gain and little to lose by replacing O’Connor with an anti-Roe justice, because abortion isn’t just an up-or-down issue. It’s an issue of incremental restrictions. On the restrictions, the public tends to agree with Bush. And while Roe isn’t directly at stake in this court appointment, some of the restrictions are.

Bush understands this. Every time he’s asked about abortion, he does a cute little dance. Two years ago, when I was writing a book about abortion politics, I called it the Texas Three-Step. Here’s how it goes. First Bush nods to pro-lifers in principle. He tells them something vague about building a culture of life. Then he winks to pro-choicers in practice. He lets them know he won’t or can’t ban abortion outright. Then he changes the subject to restrictions that poll well—usually laws that require parental notification or ban partial-birth abortion.

Here’s Bush speaking to the Southern Baptist Convention two weeks ago: “A compassionate society rejects partial-birth abortion. And I signed a law to end that brutal practice, and my administration will continue working to defend that law.” And here he is an interview last week: “Life is precious in all forms, all stages, and … that belief leads into political debates on issues like whether or not a parent should be notified prior to a daughter’s abortion.” The interviewer asks: “Do you think abortion should be illegal?” Bush replies that he’s “a realist” and that because Americans are “polarized” on the issue, “we’re going to have to change hearts.”

Two days after Bush gave that interview, O’Connor dropped her bombshell. Reporters asked Sen. Rick Santorum, R-Pa., what might happen to Roe. Santorum is one of the most avid pro-lifers in Congress. But he also serves in the Senate Republican leadership and faces a tough re-election fight next year. “I’m not sure that Roe itself will be in jeopardy,” he demurred. The Pittsburgh Tribune-Review headlined his comments, “Santorum predicts limits on abortions.” The paper’s lede said Santorum “expected the next justice to be more inclined to ban so-called partial birth abortions. He also predicted parental consent for minors seeking abortions will likely get a more sympathetic ear.”

Why do Bush and Santorum pick these restrictions? Look at the polls. Do you want Roe overturned? Two-thirds say no. Should partial-birth abortion be illegal? Two-thirds say yes. Should teenage girls have to notify their parents before getting an abortion? Four-fifths say yes.

Now look at O’Connor’s record. What are the two abortion issues on which an anti-Roe judge, by replacing her, would most plausibly change the court’s jurisprudence? The first is partial-birth abortion. Five years ago, O’Connor cast the fifth vote to protect that practice from broad prohibition. The second is parental notification. In 1990, the court upheld a Minnesota parental-notification law under one condition but struck it down under another. O’Connor cast the deciding vote both ways. Since then, pro-lifers have picked up one seat (Clarence Thomas for Thurgood Marshall), and pro-choicers have picked up another (Ruth Bader Ginsburg for Byron White). That leaves O’Connor’s successor to decide the issue.

And guess which two issues are heading to the court next? That’s right. A month ago, the justices agreed to hear a parental-notification case from New Hampshire. The federal ban on partial-birth abortions isn’t far behind.

Politically speaking, Gonzales is exactly the wrong guy to put on the court right before the New Hampshire case. He’s the guy pro-choicers quoted when they went after another Bush appointee, Judge Priscilla Owen. Gonzales’ quote—that Owen pursued “an unconscionable act of judicial activism”—took place during an argument on the Texas Supreme Court. The issue was parental notification. Owen was on the right. Gonzales was on the left.

Everyone knows a Gonzales appointment would tick off the right. It’s hard to see Bush doing that, given his reliance on the Republican base. But it’s even harder when you do the math. The Supreme Court is one vote shy of upholding some very popular abortion restrictions. It’s two votes shy—three, if you count replacing Chief Justice Rehnquist—of overturning Roe and blowing up the GOP. The perfect sequence is to give the pro-lifers O’Connor’s and Rehnquist’s seats and then—when Justice Stevens steps down and Roe really is on the line—give the rest of the country Gonzales. Timing is everything.