Don’t assume Kagan will uphold abortion rights — VOICES for REASON

If John McCain had been elected in 2008, a woman’s legal right to procure an abortion would be in grave danger right now.

Remember, McCain ran for president on a campaign promise to select judges who agree that Roe v. Wade is “a flawed decision that must be overturned.” Before the 2008 election, there were already as many as four votes to overturn that decision (certainly Justices Antonin Scalia and Clarence Thomas, and possibly John Roberts and Samuel Alito). Now add the two successors that McCain would have selected (to replace retiring Justices David Souter and John Paul Stevens), and voila! A strong majority, ready to sweep aside Roe v. Wade, could be in place on the Court.

The fact that the nation has been spared such a “McCain Court” is perhaps the only reason to be glad that President Obama is in office at this critical juncture. To his credit, Obama made clear his support for abortion rights during the campaign. And just recently, speaking about the search for a successor to Justice Stevens, Obama said: “I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights.”

Considering Obama’s history-making push to expand government control in health care and other fields, there’s good reason to conclude that he doesn’t understand the first thing about individual rights in their proper, philosophical meaning. Nonetheless, it’s important that the president wants to defend the 1973 decision in Roe v. Wade, in part because it does, in fact, erect a barrier against laws that would prevent a woman from exercising her own right to life—which includes terminating pregnancy when the woman judges it proper.

Yes, there are significant defects in the legal reasoning of that decision. But it is vitally important that it not be overruled until a better analysis can secure a majority vote to replace it. Why? Because, for better or worse, the “right to privacy” reasoning in the abortion cases is the only surviving theory on which the Court is willing to recognize rights that are not subject to infringement by majority vote. If Roe v. Wade is overturned, it will be because the Supreme Court has declared itself constitutionally powerless to recognize and protect any rights that are not specifically listed in the Constitution. At that point, all the “right to privacy” cases will fall like dominoes—cases that recognize the right to use contraception, to marry outside one’s race, to educate one’s child in a private school, and so forth.

Because individual rights are so poorly understood, and because their status in the Supreme Court is so precarious today, it’s very important to understand how Obama’s nominee, Elena Kagan, will proceed in the realm of so-called privacy rights. “Abortion could be sleeper issue in Supreme Court confirmation process,” said a recent headline in The Washington Post. The article included this passage:

In a cautious statement issued shortly after Kagan’s nomination, Nancy Keenan, president of NARAL Pro-Choice America, wrote that “We call on the Senate to give Solicitor General Kagan a fair hearing and look forward to learning more about her views on the right to privacy and the landmark Roe v. Wade decision.”

Let’s not simply assume that just because Kagan is a political liberal, she will be willing or able to resist the alarmingly widespread view that Roe v. Wade should be overruled, leaving women vulnerable to the destruction of their reproductive rights.

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