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November 12, 2002
THE EVER-VIGILANT MICKEY KAUS has noticed Bruce Fein's statement that even a conservative Supreme Court won't overturn Roe v. Wade because such an action would be "too wrenching."
I think that's true as far as it goes, but there's more to it than that. Ironically, the very pressure that the Court has faced for the past three decades makes it less likely to overturn Roe, since doing so sends a signal that if you don't like what the Court does, just demonstrate on its front steps and it will change. That has to give even anti-Roe judges pause. Right now the flak the Court gets over abortion is largely sui generis, but if it looks like such pressure will produce a change in the Court's behavior, lots of other people will come out of the woodwork to give that approach a try on their own pet issues.
As a result -- despite what I read from some lefty commentator or other -- I don't think we're "just a few years away from The Handmaid's Tale" as a result of the midterm elections. That's especially so given that many Republicans have figured out that pushing hard on abortion is a political loser that blows up in their face whenever they try it, much as gun control does for the Democrats.
In fact, I think -- and Bruce Fein says this -- that a strategy of incrementalism is more likely. I think that Bush appointees will be more likely to uphold restrictions that don't directly trench on Roe, and of course some controversial restrictions, like partial-birth abortion bans, don't conflict with Roe anyway. (Though, as Dave Kopel and I have written, Congress lacks constitutional power to regulate abortion itself entirely aside from Roe's limitations, meaning that such regulations would have to come from the states).
Even a greater willingness on the part of the federal courts to uphold abortion restrictions, however, won't actually produce such restrictions unless politicians are prepared to get behind them. Some will be, especially at the state level, but many won't be -- and efforts at the state level will still have to contend with state constitutional protections for abortion, like Tennessee's, that can't be overturned by federal judges anyway.
As a result, I think we're a long way from The Handmaid's Tale.