Progressives unhappy with many of the policies adopted by the Administration of President Barack Obama are searching for reasons to invest in the President's 2012 reelection. Today's New York Times provides a compelling one -- the right to choose:
Dozens of new restrictions passed by states this year have chipped away at the right to abortion by requiring women to view ultrasounds, imposing waiting periods or cutting funds for clinics. But a new kind of law has gone beyond such restrictions, striking at the foundation of the abortion rules set out by the Supreme Court over the last four decades. These laws, passed in six states in little more than a year, ban abortions at the 20th week after conception[. . . ] Since Nebraska passed the first 20-week limit last year, Idaho, Indiana, Kansas, Oklahoma and, this month, Alabama have followed. A similar law has advanced in the Iowa legislature, and anti-abortion campaigners have vowed to promote such laws in more states next year.
The laws directly conflict with the key threshold set by the Supreme Court: that abortion cannot be banned until the fetus becomes viable. Viability, the ability to survive outside the womb, usually occurs at the 24th week of pregnancy or later, and is determined in individual cases by a doctor, said Elizabeth Nash, a policy analyst in Washington with the Guttmacher Institute, a research group.
The laws conflict with Planned Parenthood v. Casey, where a court that included current Justice Kennedy (who, with now retired Justices O'Connor and Souter, wrote the Court's opinion) and Justices Scalia and Thomas (who dissented) held that:
We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.
We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in theface of great opposition. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S., at 759; Akron I, 462 U. S., at 419-420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe's statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at _, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.
The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U. S., at 163. [. . .] The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.
In addition to Kennedy, Scalia and Thomas, the current Court includes Chief Justice Roberts and Associate Justice Samuel Alito, both likely votes against the right to choose, and Justices Breyer, Sotomayor and Kagan, likely votes to uphold the right to choose.
That brings us to Justice Ginsberg, who is a sure vote to uphold the right to choose, but who is also a likely candidate for retirement. Her replacement will be the 5th vote. Her replacement must be chosen by a Democratic President, in this case, President Obama.
In order to name Justice Ginsburg's replacement, President Obama must win reelection. She is unlikely to retire before the 2012 election and if she did, the President may be constrained in choosing a replacement (yes, I believe the Republicans would filibuster a Supreme Court nominee.)
Need a reason to support President Obama's reelection? How about the right to choose.
