There are several rumors floating around that Reihnquist will announce his retirement soon. Given that he has cancer, I find this a likely scenario. Should he choose to stay on, he will still retire within Bush’s second term. Either way, despite Bush’s claims that he has no litmus test, O’Connor’s announced retirement gives Bush the opportunity to appoint a justice who will overturn Roe. Therefore, it is safe to conclude that Roe v. Wade will soon be overturned. It is now important to make plans for a post Roe world.
I opened up my Constitutional Law textbook last night and reread the Roe case. Here is the key to the decision: “This tight of privacy, whether it be founded in the 14 Amendment’s concept of personal and restrictions upon state action, as we fell it is, or as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” In other words, the word “liberty” in the 14th Amendment includes the right to abortion. This is what the rightwing will successfully attack when they challenge Roe.
So, what does this mean? What is the result of a post-Roe world? A women’s right to choose won’t be a federally protected individual right.
However, there is a way to use this to our advantage. In the last election, the Republicans used gay marriage as a wedge issue that appealed to the rightwing extreme base. The Democrats can do the same in 2006 by offering an amendment to state constitutions that the right of a woman to choose is a fundamental right. Depending which poll you read, a clear majority of Americans support the right to choose, usually with some restrictions. There are people with better Constitutional legal minds than mine who can come up with the wording. But, you get the point.
The Democrats can do this at the state level to great effect. This will increase Democratic turnout and get some moderate Republicans on our side.
But, the time to start planning is now. Let’s get to work
