teacherken's musings on everything

is the title of a Tom Oliphant [op ed http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/07/24/the_great_conservative_hope/] on John Roberts in today’s Boston Globe. Here’s the beginning:

PRESIDENT BUSH'S minions are telling their most conservative supporters that federal appeals court judge John Roberts is a slam-dunk certainty to extend government control of reproductive decisions into two major areas after he is confirmed as a Supreme Court justice.

I suspect that in large part they are making it all up.

Oliphant’s cynicism is based in part on the track record of previous Republican presidents dating back at least to Reagan, who have had six nominees to SCOTUS. These presidents may have promised to take on abortion frontally but instead have been to content to nibble at the edges as abortion continues pretty much undiminished [parenthetical note - on this I think Oliphant is wrong, as there have been increasing restrictions and decreasing numbers and availability of abortion].

Oliphant says that since Bush was elected twice while professing his admiration for Scalia and Thomas as role models for the Court, he

was at least on the spot to the extent that his most vocal supporters had to be reassured that Roberts is a worthy partner-to-be of the court's most rabidly antichoice activists.

Advocates for Roberts outside the administration but with connections to it are telling people

his record and their personal knowledge of him provides assurance that he is going to be the fulcrum around which two new, narrow court majorities will be created -- probably in the upcoming term -- with the departure of Sandra Day O'Connor.

The article focuses on these two issues, both of which should appear again before the Court in the near future.

The first issue is if a

government can regulate pregnancy without regard to the broad impact on a woman's health -- most specifically her ability to have children in the future if abortion rights are denied her. This effort has also sought to regulate pregnancy without regard to whether a proscribed method of abortion occurs early or late, thus obliterating another of the central foundations of Roe v Wade.

This is the argument over so-called partial-birth abortion, which Oliphant rightly notes is a term without a medical basis invented for the sole purpose of attempting to roll back Roe. O’Connor was the 5th vote in overturning the Federal law, lower courts have acted similarly with respect to state laws, and now

the Bushies are telling their conservative friends it's a certainty Roberts will uphold the statute.

The second area comes from parental notification (which has already been upheld in part). There is a New Hampshire law that has already been rejected by lower courts that Oliphant describes as adding a twist.

The New Hampshire Legislature has required a 48-hour period after a required written notice has been delivered to at least one parent that cannot be waived in case the young woman is a victim or rape, incest, or child abuse. The woman has a shot at a waiver from a judge and if her life is directly threatened, but that's it. Since intra-family disputes are not exactly a daily occurrence, the larger intent of the law is obvious -- to further undercut the health exemption in Roe to prepare the way for the next set of restrictions on abortion rights.

The idea with the New Hampshire law, as was the case with so-called “partial birth” laws, is to establish a restriction which can then be used as a precedent to further restrict access to abortion., with the hope that eventually the Court will so restrict the Federal guarantee that it ceases to be meaningful.

Oliphant finds a model for Roberts on the current Court, and it is ot Thomas or Scalia, but rather Anthony Kennedy

another impeccably credentialed conservative who is affable, religious, smart as a whip, and unlikely to encounter a government restriction of abortion rights he won't approve.

Oliphant argues that the Senate (Democrats) should argue for the release of all the paperwork Roberts produced during his work for various Republican administrations.

To the general public the White House portrays the judge as a lawyer advocating for his client; to its conservative friends, the White House is saying that he believed in his work. Let's find the truth.

He also says that Roberts should be questioned on his views about the right to privacy,(which predates Roe, being established in Griswold v Connecticut), and if Roberts fails to offer support for the right, to claim that as grounds for a filibuster.

But his final paragraph emphasizes the point others have made since the nomination was announced - the rights under Roe cannot ultimately be guaranteed by SCOTUS:

But the most important obligation is to secure abortion rights through political work. In the end, the courts never provide enough protection for constitutional rights if voters are not asked to support them.

ELections do have consequences. The Democrats lost the last three national elections, having control of the Senate for less than 2 years of Bush’s term. The issue needs to be on the front page of political conflict, not as an issue of abortion, but as an issue of privacy rights, with due notice that should Conservatives succeed in rolling back Roecompletely, Griswold and birth control will also soon be under attack. And if anyone doubts their hostility towards women’s right, look also at their attitude towards Title IX, which is a subject on which the record of Roberts is also not very promising. I would add to the list of things about which he should be questioned to be as specific as possible on this legislation, which has made possible things like the championship U.S. Women’s National Soccer team.