Marjorie Cohn: Right to Choice under Nuke Attack

The year before Roe v. Wade was decided, I met a poor, young woman in a rural American town who had five children, born one year apart. Sally's husband would show up about once a year, beat her up, knock her up, and leave her to fend for herself and the kids. She was a battered woman, trapped in a disastrous marriage. A lawful abortion was not an option for Sally, and she was afraid to go the back alley route.

In 1973, the Supreme Court decided in Roe v. Wade that a Texas law criminalizing abortion was unconstitutional. The due process clause, the Court said, protects the right to privacy, including a woman's qualified right to terminate her pregnancy. In the late stages of pregnancy, this right was balanced out by a compelling state interest in protecting unborn children. The Roe Court established a trimester scheme that allowed some state regulation in the latter trimesters. Nineteen years later, in Planned Parenthood v. Casey, the Supreme Court rejected Roe's trimester scheme, and held that any measure that puts an "undue burden" on a woman's right to abortion is unconstitutional.

The Roe decision galvanized the Christian right in an unprecedented way. In right-wing Evangelical churches throughout the country, a movement was mounted to overturn Roe v. Wade. A movie that referred to abortion in America as the new "holocaust" began to circulate during worship services.

Now, 32 years after Roe was decided, this sentiment has penetrated mainstream politics. It is embodied in a massive campaign to secure the appointment of judges who oppose Roe v. Wade.

Two days ago, the right-wing Evangelical movement organized a cable and Internet virtual church service called "Justice Sunday: Stop the Filibuster against People of Faith," broadcast from a mega-church in Louisville, Kentucky. Tony Perkins, president of the Family Research Council, estimated that 61 million households witnessed the event. Although cast as merely a campaign to convince senators to stop the Democratic filibuster of some of Bush's judicial nominees, the main thrust of the 90-minute program was to re-criminalize abortion.

The names, photographs and telephone numbers of senators who have not committed to the "nuclear option" to destroy the filibuster trailed across the bottom of the computer screen. Speakers argued that by blocking judicial nominees who oppose abortion, Democrats are discriminating against them.

James C. Dobson, founder of Focus on the Family, decried "six or eight very squishy Republicans" who oppose the destruction of the filibuster. Dobson, who recently compared the Supreme Court to the KKK and held it responsible for the "biggest holocaust in world history" since Roe v. Wade was decided, called the justices "unelected and unaccountable and arrogant and imperious and determined to redesign the culture according to their own biases and values - and they're out of control."

Another featured speaker was Judge Charles Pickering, appointed by Bush to the Fifth Circuit Court of Appeals during a Congressional recess to circumvent Senate opposition. Pickering, who voted for a constitutional convention to overturn Roe v. Wade, defensively cited his "civil rights" record for the crowd.

Behind the pulpit from which the faithful spoke loomed oversized photographs of nominees championed by the Christian right. The likeness of Bill Pryor, also propelled by Bush onto the US Court of Appeals during a Senate recess, was featured prominently. Pryor once called Roe v. Wade "the worst abomination of constitutional law in our history."

Particularly conspicuous were huge photos of California Supreme Court Justice Janice Rogers Brown and Texas Supreme Court Justice Priscilla Owen. On Thursday, the Senate Judiciary Committee, voting along party lines, sent the nominations of Brown and Owen to the Senate. Both were blocked by a filibuster in the last Congress.

While serving on the California Supreme Court, Brown opposed a minor's right to obtain an abortion without parental consent. Brown's previous nomination to the federal court was opposed by 250 law professors.

And in one case, Owen so twisted the law, that Alberto Gonzalez was moved to write, "To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."

Yet judicial activism is precisely what the right-wing Evangelicals level at the sitting judiciary, including the nine justices on the present Supreme Court, seven of whom were Republican nominees.

Right-wing Evangelicals have attacked US Supreme Court Justice Anthony Kennedy for authoring the majority opinion in Lawrence v. Texas, which struck down an anti-sodomy law. And speakers on Sunday railed against same-sex marriage; laws against school prayer, the words "under God" in the Pledge of Allegiance and the Ten Commandments; and the refusal of judges to intervene in the Terri Schiavo matter. But their eyes were on the big prize: outlawing abortion.

For the first time since Roe v. Wade ushered in a "holocaust," the right-wing Evangelicals can smell red meat. I think the Republican leaders have promised leaders of the Christian right that, in return for their unflinching support, Bush will replace a Supreme Court justice who supports Roe with someone who will vote to reverse it, if he gets the opportunity. The Christian right may have even presented a list of acceptable replacements. The Republicans feel they must repay their political debt to the Christian right and they can only make it happen with the nuclear option, which Senator Robert Byrd has called "a legislative bomb that threatens the rights to dissent, to unlimited debate, and to freedom of speech." Dick Cheney, president of the Senate, has vowed to support the nuclear option in case of a 50-50 tie. The Republicans are willing to mortgage the future, if necessary, to repay this debt.

If they can stop the Democrats from using the filibuster to block Bush's anti-abortion federal court nominees, the right-wing Evangelicals can ultimately tip the balance of the Supreme Court and get Roe v. Wade reversed. Then, the only choice left for women like Sally will be a bloody coat hanger, or a life of misery.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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