Challenging the Supreme Court on Choice

Ballot initiatives around the country this fall -- a parental notification measure in California, a "personhood" measure in Colorado, and an outright abortion ban in South Dakota -- threaten choice at various levels, but if passed, the implications can be even greater. I have a post up over at RH Reality Check about the division of opinion within the anti-choice movement about where the Supreme Court stands on whether Justice Anthony Kennedy is ready to overturn Roe v. Wade.

Ultimately, the division among anti-choice conservatives centers on how they interpret the positions of the current Supreme Court justices. To more closely examine this division within the anti-choice movement, one need only look at a memo (PDF) written last year by James Bopp, Jr. and Richard E. Coleson, two socially conservative lawyers specializing in constitutional law in response to Colorado's proposed amendment.

Bopp and Coleson noted that the "equal protection" analysis that Justice Ruth Bader Ginsburg put forth in the Gonzalez v. Carhart dissent in 2006, in which she wrote that "legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature," has a potentially damaging impact on the anti-choice movement. They fear that other justices will begin to agree with Ginsburg, and that once abortion access is inextricably linked with a woman's ability to be an autonomous citizen (as it should be!), the anti-choice movement would lose all political momentum.

Here's where the strategy gets tricky. Bopp and Coleson argue that even if a direct abortion ban, like the one that is on the ballot in South Dakota, passes and reaches the Supreme Court, the "swing" vote on the Supreme Court these days -- Justice Anthony Kennedy -- would not be ready to overturn Roe. If that were the case, Ginsburg would be the justice writing the majority opinion rejecting an abortion ban and outlining in greater detail what "equal citizenship" means. Bopp and Coleson write that they fear this "new legal justification for the right to abortion would be a powerful weapon" and they even think it might lead to the Supreme Court, if they were to rule on a case that directly challenges Roe, overturning "parental involvement for minors, waiting periods, specific informed consent information, and so on."

Read the rest of the article here.