An Odd Suggestion for Souter's Replacement: Overturn Roe v Wade? by James F. Pontuso May 6, 2009 Category: Political

RESIDENT OBAMA WILL soon make his first nomination to the Supreme Court in order to replace retiring Justice David Souter. Since Justice Souter almost always votes with activist justices, the nomination will not tip the balance on the most controversial issue facing the Court - the difficulty of balancing a woman's right to abortion and a fetus's right to stay alive. The current Supreme Court has avoided taking a clear stand on abortion. In 2007 the Court ruled in Gonzales v Carhart that the federal government could limit "partial birth abortions" and in 2008 it refused to hear cases that had overturned state laws prohibiting women prisoners' right to abortions. In neither case did the court rule on the central issues of whether Roe v. Wade the 1973 case that established a woman's right to abortion. Right to choose advocates had been concerned that Justice Samuel Alito will provide the swing vote against Roe v. Wade, a precedent that has been upheld in a number of 5 to 4 rulings with Sandra Day O'Connor, whose place Alito took on the Court, providing the margin of victory. Yet, if Justice Alito's hearings before the Senate indicate his judicial temperament, it is clear that he not given to rash or bold jurisprudence. He may become convinced that overturning a long-standing precedent, especially one that has so influenced public policy as Roe, is an imprudent exercise of judicial authority. It may seem an odd suggestion, but if President Obama's nominee to the Court considers the long-term health of the nation's political institutions the choice is clear: overrule Roe. There is a great deal of confusion associated with Roe. Many people believe that by reversing Roe the Supreme Court would ban abortion. But, in fact, overturning Roe would merely give state legislatures, governors, and ultimately the people themselves responsibility for deciding the abortion issue. Giving voters choice on abortion would mean that the complex system of decision making best described by James Madison and ultimately instituted in the United Sates would come into play. According to Madison partisan groups or factions must seek to convince and attract the public if they wish to have their policies adopted. If a faction becomes too adamant or confrontational, it may cause a backlash and alienate public opinion rather attract it to the cause. Blowing up buildings or intimating doctors does not garner wide-spread support. Madison's system has served the nation well, ameliorating most of the controversial issues that have faced the country - with the exception of slavery - where the Supreme Court also interjected itself into a political dispute. Madison's scheme favors compromise and conciliation over conflict and extremism. Interested groups must endeavor to form moderate governing majorities, a task that demands convincing most people of the rightness of their policies. It is exactly because the Court took choice over abortion away from the people that the issue has become so heated. Both sides in the abortion debate have acted irresponsibly without fear of alienating centrist voters. Pro-choice champions insist that women have an unrestricted claim to abortion and need give no thought to the duty human beings owe to one another - even to the vulnerable, such as a fetus. Pro-life adherents maintain that existence begins at conception and that women abnegate their choice in favor of the fetus's right to life, no matter how early the pregnancy. Pro-life advocates have been most adamant forwarding their position - confronting abortion clinics and threatening doctors who perform abortions - because they were on the losing side in Roe. Both sides have mounted smear campaigns at nomination hearings in an effort to demonize judges whose judicial principles may lead to results with which they disagree. Senate hearings have degenerated into arenas of character assassination based on rumor and innuendo. Highly qualified jurists, such as Robert Bork, have been denied appointment to the Supreme Court. Judges without distinguished records and little or no paper trail on which they can be attacked - David Souter and Clarence Thomas - have been elevated to the bench. Justice Alito's nomination was nearly sabotaged because of his distinguished, and therefore, easily discernable record. Justice Alito was most strenuously attacked by women's groups. It was more than a little ironic that the turning point of the Alito hearings came when his wife, Martha-Ann Alito - in a display of tradition gender roles - was reduced to tears by the assault on her husband's integrity. Spokesperson's for pro-choice NARAL (National Abortion and Reproductive Rights Action League) made two claims during the Alito hearings in opposition to his nominations. First it was said that the precedent in Roe should be upheld - and Alito defeated - because a majority of the people now favor women's right to abortion. Second, NARAL held up the "coat hanger" image of women forced to seek illicit abortion perhaps endangering their lives. Public opinion polls show that a majority of Americans favor some sort of legalized abortion. But if this is true, then Roe is no longer needed to protect women's choice since the majority, acting through elected officials, can legislate to sustain that right. Moreover, the same shift in opinion that supports abortion is evident in the public's attitude toward un-wed mothers. The shame of bearing a child out of wedlock has immeasurably lessoned, if not disappeared completely. This shift is evident in the public attitude toward Hollywood celebrities whose careers have not been hurt by parenting children without benefit of marriage. Absent the social stigma, it is unlikely that many women will risk their lives to obtain illicit abortions. If responsibility for abortion policy is returned to state legislatures, women in some states will lose the freedom to terminate unwanted pregnancies. Conservative states such as Utah may ban all abortions. Of course, women could seek abortions in states more hospitable to their right to choose. Moreover, Congress could mandate equal treatment either through a general law or by withholding federal dollars, say Medicaid funds, to those states that do not follow its guidelines. Democrats could even use the abortion issue to sustain their majority in Congress if, as NARAL suggests, the public favors the right to choose. In most states, the legislative process will mostly likely establish laws that recognize women's rights to control their own bodies, but place some restrictions on those rights as the fetus develops. It is unlikely that purists on either side will be happy with this solution. But it is the strength of Madison's scheme to create temperate solutions to volatile problems, ones that are acceptable to the moderate center and not extreme factions. The new Justice should cast his or her vote against the precedent in Roe. Overturning the decision will breed compromise and conciliation in our political system instead of confrontation and conflict. It will go a long way to bringing back civility to Supreme Court nomination hearings and may insure that future judges tapped for the highest court will not have to endure the humiliating spectacle that he did. RightSideNews.com Contributing - James F. Pontuso is Charles Patterson Professor of Government & Foreign Affairs at Hampden-Sydney College, Hampden-Sydney, Virginia. He is author of numerous scholarly articles, reviews and essays. He is author of a number of books including Vaclav Havel: Civic Responsibility in the Postmodern Age. More guest columns.