Mitt Romney needed to distance himself from the Republican Senate candidates who have been explicit about the misogyny opponents of legal abortion are supposed to leave latent, babbling nonsense about how women can’t get pregnant from “legitimate rape” and comparing being raped to having sex outside of marriage. So Romney did what he does best: coming up with a another evasion on abortion. Earlier this week, he asserted that the issue of abortion has “been settled for some time in the courts” and “the decision that will be made by the Supreme Court.” This is a classic strategy for politicians who need to finesse the issue — argue that because the courts have issued a ruling the matter is now out of the hands of elected officials.
The problem is, as Sarah Kliff and Irin Carmon point out, that this isn’t actually true. The next president will have a potentially large impact on abortion policy, beginning with (but not limited to) the possible opportunity to replace one of the 5 pro-Roe justices on the Supreme Court. Of these 5 votes, 3 have to be considered candidates to retire in the next four years: the 76-year-old Anthony Kennedy, the 74-year-old Stephen Breyer, and Ruth Bader Ginsburg, a 79-year-old cancer survivor. This makes it very likely that the fate of Roe hangs in the balance of the 2012 elections.
Some people may see predictions that Roe will be overturned, however, as having a “boy who cried wolf” quality. After all, a majority of the justices on the Supreme Court have been appointed by conservative Republicans for more than two decades, and yet Roe is still standing (albeit in weaker form.) Overturning a popular precedent would have political downsides for the Republican Party. So would Romney actually nominate an anti-Roe justice?
Almost certainly yes, for two reasons. First of all, the survival of Roe was not the result of Republican calculation but was highly contingent. Had Ronald Reagan nominated Robert Bork and Antonin Scalia in reverse order, Bork would have been confirmed by a Republican Senate and Roe would have been overruled by 1992. George H.W. Bush’s nomination of David Souter reflects the relative lack of priority the former put on the abortion issue, but Souter certainly wasn’t nominated because he supported reproductive rights; Bush could have just as easily nominated a candidate with relatively unknown views who turned out to be anti-Roe. A lot of luck has been involved in maintaining Roe, and it would be unwise to assume that this will continue.
And secondly, conservatism has changed. Mitt Romney will not be permitted to be as indifferent about a Supreme Court justice’s position on Roe as George H.W. Bush was. (David Souter’s moderation insured that it will be a long time before a Republican president appoints someone similar.) And while a justice who explicitly opposed Roe would be vulnerable to a Democratic Senate like Bork was, a generic Republican appellate court nominee is substantially more likely to favor overruling Roe than a generic Republican nominee 20 or 30 years ago would be. Even if Mitt Romney wanted an otherwise conservative pro-Roe justice, he wouldn’t have many options — and there’s no reason to believe he would want do that.
In addition, as Carmon correctly points out given the cases currently percolating in lower courts a conservative court could do substantial additional damage to the reproductive freedom of American women without announcing the overruling of Roe v. Wade. Abortion law, in other words, is not “settled” in any sense, and this should be a major issue in the 2012 election.