The WaPo’s George Will argues in his latest column that Americans need not base their presidential vote on Supreme Court justices and upholding Roe v. Wade. Will concedes, of course, that the “next president probably will have an opportunity to significantly shape the court,” but concludes it doesn’t really matter when it comes to reproductive rights. He says the “reasonable response” should be, “So what?”
Will basically offers a two-part argument to explain why it wouldn’t matter if a Republican presidential candidate stacked the court with more Scalias and Thomases. First, he argues, justices occasionally respect precedent, so the next justice (or justices) may end up backing Roe anyway. Second, he says, it wouldn’t matter anyway.
Again, so what? Many, perhaps most, Americans, foggy about the workings of their government, think that overturning Roe would make abortion, one of the nation’s most common surgical procedures, illegal everywhere. All it actually would do is restore abortion as a practice subject to state regulation. But because Californians are content with current abortion law, their legislature probably would adopt it in state law.
It is not irrational for voters to care deeply about a candidate’s stance regarding abortion because that stance is accurately considered an important signifier of the candidate’s sensibilities and sympathies, and of his or her notion of sound constitutional reasoning. But regarding abortion itself, what a candidate thinks about abortion rights is not especially important.
This comes up from time to time, though I usually hear it from Green Party supporters. (Ralph Nader, in each of the last two elections, has said it wouldn’t matter if Bush stacked the high court because some states would probably keep abortion rights legal.)
But as long as Will’s making the argument, which we’re likely to hear again as the campaign unfolds, it’s probably worth taking a moment to explain how wrong it is.
Will’s first contention is just silly on its face. Voters who care about these issues should take comfort in the fact that occasionally conservative justices vote to take stare decisis seriously? That’s hardly comforting.
But it’s the second part of the argument that’s important. Will envisions a system in which Americans’ constitutional rights, at least with regards to privacy, vary from state to state. Dana Goldstein highlights the flaws in this logic.
[I]s it inconceivable that while women in California and New York understand their own states are likely to protect existing abortion rights, they also believe strongly that other women, in Mississippi and South Dakota and Nebraska, deserve the same freedom? Secondly, Will’s argument proceeds from the spurious assumption that in “liberal” states, access to abortion is already universal and protected by the law. In fact, low-income women who rely upon Medicaid for health care are barred by the federal government from using their benefits to access abortion. So the reproductive health priorities of the next president are crucially important not only to protecting choice in individual states, but to expanding it nationwide.
For that matter, Will’s overarching point is that there’s simply a disconnect between a president’s power and a woman’s right to choose. But that’s wrong, too, as Bush recently made clear by naming an opponent of birth control to head the federal government’s family planning office.
As Goldstein concluded, “George Will asks, ‘So what?’ if we elect an anti-choice president. Earth to George: Women will suffer! And the poorer and more vulnerable they are, the more they’ll be adversely affected.”