I said this yesterday, but it bears repeating: Justice O’Connor’s retirement isn’t about abortion. But it is about reasonable restrictions on abortion. The retirement of Justice O’Connor does not, by itself, endanger Roe v. Wade. But it does raise the possibility that states may be entitled to pass sensible limitations on abortion, like strict parental notification, longer waiting periods with real informed consent, or — most importantly — a ban on partial-birth abortion.
Because such reasonable restrictions are quite popular, look for newspapers to mention them only in passing. The strategy of leftist abortion activists is to push the panic button on Roe v. Wade itself, and their surrogates at the nation’s largest newspapers understand and will support this approach. Rather than portraying the issue as a chance to allow real restrictions on abortion, the newspapers will portray the issue as a simple case of the basic right to abortion hanging in the balance.
When will the back-alley abortions begin? When will we start throwing pregnant women in jail? These are the questions you can expect to hear from leftists at major newspapers like the L.A. Times. And it’s already starting.
The Times today publishes an article titled If Ax Falls on Roe, It May Also Split GOP, which opens:
WASHINGTON — Social conservatives relish the idea that Justice Sandra Day O’Connor’s resignation from the Supreme Court has moved them one step closer to their goal of outlawing abortion. Liberals are vowing to fight any potential successor who would, unlike O’Connor, favor overturning Roe vs. Wade, the 1973 ruling that affirmed a woman’s right to end a pregnancy.
Nice word choice, that: “affirmed.” I guess they didn’t feel like using the accurate word: “created.” And, of course, the Supreme Court can’t outlaw abortion, it can simply return the matter to the states. The story doesn’t say any different, of course . . . it just strongly implies it. Very clever.
The story neatly fits the theory I articulated above, by creating the following false dichotomy:
But the prospect of progress toward overturning Roe — and the realization that President Bush could have at least two chances to make transformative appointments to the court — has exposed a disagreement between conservatives who want abortion criminalized and pragmatic Republicans concerned that shifting the issue from the courts to the ballot box would lead to massive GOP losses.
See how deftly that was done? There is no mention of the Republicans who are uncomfortable with criminalizing abortions, but who want states to have more freedom to impose the sorts of restrictions that Chief Abortion Dictator Sandra Day might find offensive, depending on the circumstances — like a ban on partial-birth abortion, longer waiting periods with informed consent, or strict parental notification laws for minors, to take three prominent examples. (In fact, in some cases Justice O’Connor actually voted for milder restrictions — but always arrogated to herself veto power if she felt they would constitute an “undue burden” on a woman’s right to an abortion.)
Many such restrictions are overwhelmingly popular — far more popular than the right to abortion on demand. An April 2005 Fox News/Opinion Dynamics poll found:
Over three-quarters (78 percent) of the public think young women should be required to notify at least one parent or guardian before having an abortion and 72 percent support requiring permission from at least one parent.
A March 2005 poll from Quinnipiac University similarly found that 75 percent of the public favors “parental notification before a minor can get an abortion.” That same poll found that 66 percent of voters support a “24-hour waiting period for a woman seeking an abortion,” and also found that:
Voters say 75 – 13 percent that so-called “partial birth abortion” should be illegal except when necessary to save the life of the mother.
In short, reasonable restrictions such as these enjoy overwhelming support — far more overwhelming than the basic right to abortion. But today’s L.A. Times article doesn’t mention the numbers I just cited to you. It chooses instead to focus, predictably, on poll numbers relating to the basic right to abortion itself:
A May survey of registered voters by Quinnipiac University in Hamden, Conn., found that 55% believed abortion should be legal in all or most cases — including 6 in 10 independents and more than a third of Republicans.
Another May survey, conducted for NBC News and the Wall Street Journal, found that 55% of adults believed the matter should be left up to a woman and her doctor. The margins of error for each poll were 3 and 3.1 percentage points, respectively.
The article ends, once again, with the false dichotomy:
Ann Stone, chairman of Republicans for Choice, said the best evidence of all that the GOP establishment benefited from maintaining Roe was the lack of any push by the party’s majority leadership in Congress for a constitutional ban on abortion.
“If they thought it was a winning issue, they would have had a vote,” she said. “This could wind up being a case of getting what you wish for and then regretting it.”
See? Again, it’s those who support Roe vs. those who want to ban abortion entirely. Apparently, if you oppose Casey, and the O’Connor “undue burden” jurisprudence that strikes down immensely popular restrictions such as partial-birth abortion bans, you must want to start jailing pregnant women and their doctors for exercising basic abortion rights in the first trimester.
Today’s article is a blueprint. Look for various versions of this article to be published during the coming weeks and months. As you read them, remember: it’s all a false dichotomy. Replacing O’Connor will not overrule Roe. And overruling Roe will not outlaw abortion. But getting a good conservative Justice at the Supreme Court may open the way to restrictions that most Americans favor.