Without being to simplistic about Roberts is the upshot of his elevation to the Court that citizens will have less rights, the Congress will have less power and the wealthy, the powerful and state legislatures will have more power?

That's the thing though, Roe v. Wade probably SHOULDN'T have been ruled on in the manner it was by the Supreme Court. I've heard this from both sides and their arguements were very convincing to me (someone who is currently studying law). That said it's established precedent and by God we are DAMN WELL GOING TO FOLLOW THE PRECEDENT.

...with this aspect of your argument:

Republicans want to completely take away a woman's right to choice. You cannot counter that with some "limited" abortion rights. You must counter that with upholding the law that is in place today.

But I more disagree with your implication that your position here represents the "grassroots" of the Democratic party. I think you are to the right of Democratic thinking on this issue.

"Give away this right and all rights are up for grabs."

Wow. Just...wow. So you're saying that if we take away the right to kill a baby, free speech is next? Because those are the terms of the debate. The Religious Right don't claim to be "pro-life" simply because it's an effective tactic. They firmly believe that abortion is murder, plain and simple. And wouldn't you consider murder something that shouldn't happen with the consent of the government?

Now, I personally don't agree that it's murder. I don't think fetuses count, basically. But to assume that anyone who opposes abortion is doing so because they blindly follow the dictates of a given religion, or because they hate civil liberties, is a foolish mischaracterization of the Other Team, which is always always always a bad idea.

-sam 

Abortion rights will be returned to the States eventually. We'll end up with a few progressive states permitting it.  A vast majority of states will be cowed by Evangelicals and Dominionists into outlawing it. The poor in the South and West and Bible Belt will struggle to get to Massachusetts or California for their abortions. Failing that they'll use illegal clinics which will constantly be harassed by zealots and raided by the government. Moving beyond their Federal abortion ban victory the Right will attack birth control, pre-marital sex, fertility manipulation/enhancement, teen sex, all pornography and blow-jobs. Possession of Vaseline, condoms and Kleenex will result in arrest. Rick Santorum will choose your wife for you. The teaching of the rhythm method is required before marriage. Lastly, don't even ask where homosexuals figure in the New Order. They'll be gathered up with the Gypsies, the disabled and people who wear glasses and sent somehere, never to be seen or heard from again....................

You don't think the Religious Right is only after abortion, do you?

They're after prayer in school, discounting evolution -- if they had their way, the litmus test for almost anything would be how religious you are.

James Dobson has an agenda beyond "abortion is murder."

The question isn't what aspects of abortion the electorate feels uncomfortable about or doesn't like. The question is, whether the government gets to make decisions for women about the uses to which their bodies can be put, or whether the women get to make those decisions.

Give the government the power to make women bear unwanted children and you hand it a tool of tyranny. You can see the uses to which such a tool can be put in China, Romania, and other such outposts of freedom. If fetuses have equal rights, women cannot.

I'm afraid it's wishful thinking to expect "a Congress bent on imposing an anti-choice ideology on the country" and about to "embark on a nationwide prohibitionist legislative agenda" to also "guard the rights of women and . . . Justice O’Connor’s legacy of moderation."

Unfortunately, the Democrats are not powerful enough to stop the confirmation of Roberts--and even if they were, the next Bush nominee would certainly not be any more liberal.

I think the Democrats' strategy now has to be this:

First, be polite and not overly confrontational, but ask probing questions that force Roberts either to affirm his belief in moderate positions or to expose any extreme positions he holds. If you can get Roberts on record as supporting moderate positions, then you've at least put some pressure on him to stick to those positions once he's on the court, simply to preserve his integrity. If you expose extreme positions, then you have legitimate grounds on which to oppose him.

Second and most important, figure out a way to start winning some elections! Until the Democrats win elections, they really can't accomplish anything else.

Third, develop a strong, consistent message in support of reproductive liberty.  The Democrats increasingly seem to be taking a weak position that may reflect the public's ambiguity about abortion, but doesn't lead the public anywhere. People want to be led, not pandered to. 

It's always presented as total abortion rights or no abortion rights.

I'm a little puzzled by this term "total abortion rights".  This sounds like the sort of thing the right would like to pretend liberals are in favor of - abortion being legal perhaps up until about 30 days after birth - as opposed to an actual liberal policy position. 

I can understand the concept of a debate on no abortions vs "safe, legal and rare", or no abortions versus the current status quo.

But who exactly is in favor of "total abortion rights" and what do they mean by this precisely?

And I would certainly hope no one would suggest that "total abortion rights" is an apt description of the current state of affairs, as again that sounds like a disingenuous right-wing talking point: as if it was it was impossible to have more relaxed abortion regulations than are currently in place.

Gotcha -- sorry, I misinterpreted your post.

You wrote ... "as if it was it was impossible to have more relaxed abortion regulations than are currently in place."

I have heard many, many people in the Democratic Party argue just that position over the years, and brand anyone who did not conform to that line as as disloyal to Democratic ideals.

Aside from partial-birth (or whatever folks want to call it), there's also the issues of abortions for minors and parental notification laws. The Clerks blog with Think Progress has a little overview of an upcoming case (Ayotte v. Planned Parenthood) on this.

This is tough and it is painful.  But this issue was decided last November.  Putting your energy into a grand fight at this point is to waste yourself.
Keeping the focus on the law breaking and unethical behavior of the Bush (Rove) administration will go ten times further toward protecting women's rights by making it uncomfortable for moderate Republicans during the coming election.  Your protests will do nothing to diminish the power these people have right now, but we can break their hold by focusoing where they are weak right now.  Remember how NIxon went down.

dc

Matt, I agree with you that there's no explicit textual support for a right to abortion in the constitution. However, if I were a senator questioning Roberts, I would want to ask him two things:

First, if he agreed with the statement in his earlier brief that Roe was "wrongly decided"--if I were the senator asking the question, I think I would stress that since he already has a statement on record, the Senate would be right to assume that his position was indeed that stated in the brief unless he took this opportunity to state otherwise. 

Second, if he did agree with the brief, exactly how was Roe wrongly decided?

Roe rests on two pillars--the right of privacy in family matters and the definition of person  (if a fetus were considered a person, then a person's right to life would pretty much prevent abortion except possibly in cases where the mother's life was threatened--the court in Roe decided that a fetus wasn't a person, thereby making killing the fetus possible).  In asking the second question, I'd be trying to clarify whether Roberts had an objection to finding a right of privacy or to Roe's definition of personhood. I'd be particularly disturbed if he objected to a right of privacy, since this would make me think he has a very narrow view of individual liberties in general.  Personally, I think Roe does a fairly good job of defining personhood in relation to unborn children, but I guess I can accept that some people would legitimately disagree with Roe's conclusion on this more controversial topic. If this is the area where Roberts finds Roe "wrongly decided," I might be more tolerant of him, but I'd still want to ask him if he thought fetuses were fully entitled to all the rights of people from the time of conception onward. If he said yes, I'd probably vote against him, since I think that view would make it impossible for him to ever support abortion. If he said no, but he disagreed, say, with the trimester distinction in Roe, then maybe I wouldn't be so alarmed. That would suggest to me that he might modify Roe, but not overturn it completely.

One can also address abortion by questioning Roberts about the right to privacy and substantive due process.  The conservative wing of the court does not believe there is a constitutional right to privacy, which encompasses abortion and has grown to include other aspects of decisional freedom, such as engaging in sex with same sex partners without fear of criminal prosecution (Lawrence v. Texas).

In terms of substantive due process, the conservative justices believe that activities that are "deeply rooted in our national's history and traditions" can be protected under the Due Process Clause of the 14th Amendment.  For example, parents have been able to control their children's education historically.  Thus, Rehnquist and Scalia believe a parent's right to home-school their child is protected under the Due Process Clause, despite not being specifically mentioned in the constitution.  Likewise, Scalia would argue that the right to engage in homosexual sodomy is not deeply rooted in our nation's history and traditions, and is therefore not protected behavior.

Determining where Roberts stands on this spectrum will be relatively easy to accomplish if he chooses not to evade the questions.  One either believes in the broad, expansive right to privacy as described by Justice Kennedy in Lawrence...or they believe in the more restrictive construction favored by the conservatives.

Abortion is and always be a stand alone issue, to some degree, on the court.  It is the only privacy issue, after all, that attempts to balance two conflicting "rights": the right of the mother to control her body versus the right of the state to protect unborn children.  Despite this unique status, however, Roberts' answers regarding the right to privacy and substantive due process will be very revealing.  The expansive vision of Due Process seen in Lawrence is built upon the structure erected in Casey, the last major abortion-related decision.  One cannot embrace Lawrence without embracing Casey.  If Roberts shares Justice Kennedy's vision of privacy and due process, he supports abortion.  If he does not support Lawrence that wouldn't totally preclude him from supporting Casey and Roe...but it would be a very bad sign.

I understand, Brian. I was referring to the extreme positions of the spectrum of positions held in the two major parties. We have those in the Democratic Party who want us to be constantly moving toward a position where government has essentially no voice whatsover in reproductive rights, just as the Republican Party has those who favor that party constantly moving toward a position where the government has essentially complete control over reproductive rights. 

If you are asking my personal opinion, I believe that when a woman allows herself to be inseminated and become pregnant, she has entered into a type of contract with the man involved and with the state. Thus, I believe that the state can determine how to balance those rights between the individuals involved and the state, and to determine when the fetus has rights that need to be considered. Prior to that, I believe that a woman has an unchallengable right not to be inseminated against her will, and not to become pregnant.

Naturally other posts have largely focused on the necessity of abortion rights, their extent, their constitutional basis, and their future after such a Bush appointee. However, I don't want to let gaucho's post go unexamined, because it echoes the arguments by someone as influential as J. Rosen in TNR. While agreeing that "abortion should be legal to nearly the same extent it is today," gaucho argues that "the Roe decision did a disservice to progressive politics." Similarly, Rosen argues that we liberals put too much reliance on the court. Both feel that court decisions relieve us of the urgency to make our case in the political arena.  I think this is dead wrong on more than one count.

First, it seems to consider anything beyond legislation as somehow apart from the political process. But the American system is built on separation of powers, including the courts, and on guarantees embodied not just in the Bill of Rights but hte whole idea of a written constitution. Those rules are not a distraction from American democracy: they are both a branch of government and the ground rules that make the system of government possible.

Second, these rules do include rights and other matters of principle, and we'd have to be idiots not to defend them as such, rather than as policy preferences.  We'd be betraying our core beliefs if we did anyhow.  When gaucho says Roe "took the question of abortion out of the political/legislative field," he's right: that's the whole idea. It's also part of maintaining the fabric of democracy I mentioned in my first point, because rights are often interconnected.  Aside from issues of privacy (in the home, in the doctor's office, or of the doctor quite apart from his patient) and women's rights, a loss in Roe would mean the triumph of one religious doctrine on the definition of life, so it would erode my first-amendment religious freedoms as well. 

Third, that doesn't mean we need to give up fighting for our beliefs in other ways.  Believe it or not, liberals can litigate and chew gum at the same time.  In fact, we have to keep fighting, and we do.  A court decision leaves a lot open, as posts here about trimesters attest; it does not obviate pursuing back-up protection in state laws that others here have mentioned; and it does not mean not having to deal with court appointments and decisions, as now, one by one. And all these actions take political form, including organizational skills and public arguments to broader segments of American voters that ensure guarantees will last. One can see from the flurry of activity at TOMcafe how much all that is kicking in. 

Finally, gaucho worries that court decisions just mean "ticking off a substantial minority of hard-core pro-lifers."  Hmm, does he think that legislation wouldn't? 

I am extremely uncomfortable about making any concession to the conservative majority, government or a philosophically modified SCOTUS.
 
We have been witness of late to the willingness of this administration, supported by their conservative base, to trample all over individual rights, states rights etc. I have every confidence that this administration and the conservative movement in general will strongly pursue conformance on many issues that support their view while actively working to subvert any and all views not to their liking.

It is this predilection to restriction or isolationism in regards to political, social, philosophical or religious discourse that is and should rightly be the most worrisome aspect of this appointment. The central theme in this entire episode of our history is about rights that are common to all Americans and the erosion of those rights by a nominal majority that has no qualm about creating law that infringes upon the rights of the other half of the citizenry.
 
This is the real battle we face, with women's rights being but one element of the broader struggle for freedom. How to best combat the impending erosion of social and political freedom that awaits us is an open question. Just as we have seen the Bush administration restrict access to individuals during the Bamboozlepalooza tour we will see similar behaviors in the future. That such an occurrence happens even once demonstrates an underlying need to exercise complete control over the message and messenger. The demonstrated unwillingness of the administration to engage in a dialog on issues is sure to escalate over time because the aspect of controlling the message is integral to their (Rove’s) playbook.

Democrats, progressives and independent thinking individuals must remain absolutely 100% cynical of Bush and the conservative rhetoric (BS). We have been given no indication that stoic cynicism is anything but justified. Until that might occur the only alternative would be to concede the battle and the war, and that would be the worst thing progressives could possibly do.

Don’t give an inch.

"I believe that when a woman allows herself to be inseminated and become pregnant, she has entered into a type of contract with the man involved and with the state."

Wow! Do the man and the state enter into a contract to support the woman and her child for life too? 

Myself, while I think the man and state have some interest in the unborn child, the woman ultimately can make whatever decision she chooses about whether to continue her pregnancy or not. After all, she bears the burden of her pregnancy, not the man who inseminated her or the state. While it may not always be fair to men who would like to see their children born, I think men ultimately have to defer to women on this issue--at least until men start becoming pregnant themselves. 

When I say "James Dobson," I mean all the christo-fundamentalist-fascists, and Bill Frist.

If they were able to overturn RvW, it would mean they have the power to do more. And they would.

"I need to address the fact that you refer to 'killing by the mother' and 'to kill the woman's fetus.'"

You are apparently offended by my use of the word "kill."  Look at it this way:  Before the abortion the fetus was a living member of the species homo sapiens.  After the abortion the fetus is a dead member of the species homo sapiens.  The intentiions of the mother and the abortionist are the same, i.e., to accomplish the death of the formerly living member of the species homo sapiens.  Please explain why the word "kill" is not entirely appropriate.

"Women are being framed in the discussion as murderers, while the "can't you just get rid of it?" men who got them pregnant are getting off unimpugned."

First:  I did not use the word "murderer," although it would also be entirely appropriate, since it means the deliberate killing of an innocent human being.

Second:  The mere fact that others are complicit in the killing does not mean that the mother, who is a direct participant, and who under currrent law has the exclusive right to procure the death of her fetus, is being "framed."  

"The "women as murderers" thing smacks of misogyny."

The "fetus as unwanted parasite" thing smacks of infanticide. 

Two experiences.

Just this evening, I heard a news story about pro-life groups in Massachusetts that are organizing to oppose Roberts’s confirmation because they feel he’s too liberal on abortion.  (My apologies, I couldn’t find the WBUR link.)  I was surprised by the story, but it restored a sense of perspective for me.

A couple of months ago, I visited the Constiution museum in Philadelphia.  It exceeded my expectations by providing more than the usual pablum of museums, along with lots of shiny, multimedia toys.  A portion of the museum was devoted to Roe and some of the court cases that have relied upon it as a precedent.  One of Justice O’Connor’s opinions was cited, in which she made an interesting argument.  While she didn’t state that Roe had been "wrongly decided," she wrote that she would likely have decided differently if on the bench at that time.   She then explained, however, that Roe had achieved the status of precedent in the past thirty years and that its precepts should therefore be respected.

My point?  Well, in part to report the irony of opposition to Roberts’s confirmation from both ends of the political spectrum.  I appreciate the wait-and-see attitude that many Democrats have adopted, because I find that much more preferable to the chicken-little approach.  In short, I think that, although access to abortion is not as easy or as widespread as many on the left would like, it is also doubtful that the right will ever eliminate abortion rights.  I’m not saying that it isn’t an important issue, but it seems to me like it’s reached something of a stalemate.

Thank you for a thoughtful and well-reasoned post, jhaber.  I think there is substantial middle ground for agreement between us, but let me still respond to your argument point-by-point.

First, it seems to consider anything beyond legislation as somehow apart from the political process.  But the American system is built on separation of powers, including the courts, and on guarantees embodied not just in the Bill of Rights but hte whole idea of a written constitution. Those rules are not a distraction from American democracy: they are both a branch of government and the ground rules that make the system of government possible.

I think we can both agree that the Constitution does protect fundamental rights not specifically enumerated in the text.  I just think that we have a different threshold for when we say that it's there or it isn't.  But, abortion as a fundamental Constitutional right is one of the "most inferential" rights that the Supreme Court has determined exists.  I'll let other posters who are better with the Constitutional arguments make the case, but everything that Rosen and Benjamin Wittes in The Atlantic has written made loads of sense to me.

Of course the Supreme Court is a political branch.  But the effects of its decisions are often more difficult to reverse when the Court gets it wrong.  If Congress passes a bill that is unpopular, people go to the polls and throw the bums out.  That just doesn't happen when you have lifetime appointments and deference to precedent.  I don't think that O'Connor and Kennedy would have signed onto the Casey joint opinion if the court was ruling on abortion as an unreviewed issue.  Much of that decision is a brilliant discussion of stare decisis--following precedent.

Second, these rules do include rights and other matters of principle, and we'd have to be idiots not to defend them as such, rather than as policy preferences.

Look, I'm certainly sympathetic to your position, but as I said above, we have different standards for what constitutes a Constitutional right.  I just believe that the Court overreached in the Roe decision. 

Aside from issues of privacy (in the home, in the doctor's office, or of the doctor quite apart from his patient) and women's rights, a loss in Roe would mean the triumph of one religious doctrine on the definition of life, so it would erode my first-amendment religious freedoms as well. 

On the contrary, I don't believe that the Constitution can be read to endorse a liberal view of what rights women have, just as scrapping the Roe decision would not necessarily mean endorsing an conservative worldview.  It would just allow the two sides to duke it out in Congress and the state legislatures on their own terms, not just keeping the Democrats constantly on the defensive, responding to Republican efforts to nibble at the edges of the Roe and Casey decisions.

Third, that doesn't mean we need to give up fighting for our beliefs in other ways. 

Of course we should keep fighting.  But the structure of the debate is one that fundamentally hampers the Democratic side. 
Let me give you an example.  I grew up in California, where state ballot initiatives are a dominant feature of the state political landscape.  While there are positives to the initiative system, it ultimately undercuts representative government.  I saw time and again, the legislature just punting issues to the voters without giving any serious thought to reasoned compromise and shaping of legislative language.  I believe that was a disservice to the citizens of California because we got State Constitutional Amendments and state laws passed where some of the gross overreaches were not corrected.  Just look at the history of the Three Strikes law as an example.

I think the same thing has happened on abortion.  By removing the basic debate away from the legislature, we have given every opportunity to the other side to hammer away with Democrats doing little else but fighting judicial appointments and responding to bills restricting abortion rights.  Believe it or not, I really do believe that there is a middle ground that Americans can agree on in a fair and honest debate.  Saying that abortion is a Constitutional right just doesn't allow us to make those arguments.

Finally, gaucho worries that court decisions just mean "ticking off a substantial minority of hard-core pro-lifers."  Hmm, does he think that legislation wouldn't?  

Of course it will.  But we'll also see much greater engagement in the political process on the pro-choice side.  And I think that both sides will have greater respect for the result if it springs from votes by our own representatives, rather than 9 judges who have lifetime appointments.

That is, the "right" is exercised solely by having the abortion and not exercised if the decision is to deliver the child. 

That may be your legal interpretation.  It certainly is NOT how women who strongly support reproductive rights view the issue.  The right is the right of the woman, given by God and/or nature the joy/responsibility/burden of carrying the fetus for nine thoughtful months, to be the primary decision maker.  I figure, if God hadn't wanted women to have this role, he would have intelligently designed us to lay eggs.