The Roberts Hearings - Cold Comfort for Conservatives?

In the past two days, Chief Justice nominee John Roberts has soft pedaled his days as a movement conservative in the Reagan Administration (if indeed he ever was one) and embraced a right to privacy lodged not in emenations of penumbras but in the Liberty clause of the 14th Amendment. This denial of the right to privacy is code in conservative circles in saying that there is no constitutional justification for the right to abortion. Unlike the Chief Justice he is replacing, he is willing to consider the priviledged position of the Casey decision in deciding further cases on abortion rights.

Conservatives seem gleeful at his performance. They have the right to be to the extent that their guy is likely to get confirmed. However, their joy may be short lived as the judicial temprament he has shown demonstrates the he will be more like Kennedy and O'Connor than Scalia and Thomas, who bring their personal beliefs on abortion to the decision they will render - at least that is the impression.

A further question arises from this as to whether these last two are prejudging this issue. If this is not the case, it may be that given the convincing arguments that Roberts may bring to the conference on the right to privacy, the next such case may be decided unanimously in favor of abortion rights! Cold comfort indeed for conservatives.

On the other hand, the whole emphasis on Roe might indeed by a feint worthy of Gen. Norman Schwartzkopff. From a facial reading of the Fourteenth Amendment and its history, it is obvious that the intent of its framers is that any matter involving civil rights, be they the rights of the mother or the rights of the fetus, is of national concern. State law in this area is subserviant to federal rights. It is the lesson of the Civil War, when the United States became The United States. There is no overturning of Roe under this framework. What if conservatives are not stupid and they know this?

Back when I was a movement conservative in my younger days, I circulated the opinion that the Fourteenth Amendment was the key to overturning abortion rights. This cannot happen at the state level, it must be federal. Congress is empowered under this amendment to enforce the amendment and could thereby move the begining of citizenship from birth to the commencement of the fetal heartbeat (16 days after conception or a month after the last mensus). If it were to do so, the undo burden test of the Casey decision would be voided, since the fetus would have standing. Even if Roe were affirmed by the Court, congressional action in this area would have to be upheld, especially after the confirmation of Justice O'Connor's replacement, although the conservatives may wait until the death of Jusitce Stevens before attempting such a tactic. They do not have much time, however, since the conduct of the war does not look good for their continued possession of the Congress. If they were to do such a thing, they must do it fairly quickly, as a President Clinton would likely veto such a provision.

Now, would such a scenario be a good idea? Readers of this blog will know that I would say no, since it would likely lead us back to the bad old days of illegal abortion, whether this involves back alley procedures, self-induced abortion or forged lab reports which claim either miscarriage or a lower fetal age than is in fact the case. Such actions would be used as an excuse to again go after doctors in the same way that the DEA is pursuing pain specialists who treat their patients appropriately with large doses of narcotics. Even if women are not the targets of such enforcement, they will be its victims as the number of doctors willing to run afoul of the abortion police would diminish. In other words, such a prohibition on abortion would not work and would make society less free. It would not be a good idea.

Many Republican donors actually share this view, so it is unlikely that this or any other Republican Congress would enact it. They would certainly not get past a Democratic fillibuster. Even if they did, it would be the end of the Republican Party as we know it. Cold comfort indeed.

Where does this leave John Roberts? He will likely be confirmed. However, if this essay is circulated, it may make it impossible for the President to appoint another conservative to the bench unless she is a small c moderate conservative who would agree that privacy is settled law. Even then, given the possibilities I have outlined, she may never get a vote on the Senate floor.

A final comment on this. The Catholic Bishops and pro-lifers in the Church took great pains to support President Bush in the last election. It is arguable that they were even able to swing Ohio. The Roberts stance on stare decisis and privacy must be cold comfort to them as well as it seems they excerted themselves for nothing at all. This is not surprising, as they refuse to be guided by those of us in the Church who know a bit more about the presidency than they do. The chief impact a President has is the setting of the general parameters of the budget. James Q. Wilson demonstrated this in the late 80's in an analysis which showed that while President's don't always get their way in specific areas of spending they usually succeed in setting the general numbers on taxing, spending and debt. Presidents have little to say about abortion and less to say on how the Court views it. What they can control are the use of the military and the general direction of the purse. If the Church wishes to advise us on how to vote on various candidates it must focus on these things rather than on what the candidates for office cannot control. I set out on my website how Presidents and the Church may impact abortion using the power of the purse. Go to http://www.geocities.com/xianleft_michael/abortion.html to find out the real solution to abortion or see my blogs on the issue from last January at http://xianleft.blogspot.com/2005/01/marching-season-roe-v-wade.html