A good segment of our community feels very strongly that the left-wing blogs should be ramping up and putting a lot of pressure on the Senate to reject Roberts, to filibuster him, and to accept any and all potential consequences.

The issue has the potential to cause a wedge, not only here at BooTrib, but throughout the Democratic party. And it isn’t happening in a vacuum. Hillary and Dean seem to be bending over backwards to make pro-lifers welcome in the party. The party cleared the field of pro-choice candidates in Pennsylvania so they could save money on a pro-life candidate they think can beat Santorum.

The party, it seems, has gone squishy on reproductive rights. My thinking on this is complicated, so bear with me.

There is a cold, calculating, and short-term issue, and there is an issue of lasting principle.

To keep this from becoming a novel, I’ll have to leave important facets out of the overall picture. I’ll try to address them in the comments.

I’ll start with the cold calculation. With the set of facts we have right now, what are our prospects of defeating this nominee?

Can we hold six of the seven democrats that are members of the Gang of Fourteen? Can we swing over any pro-choice Republicans? That is a stiff challenge. We are gathering data about Roberts’ political contributions, his limited record, his testimony at his earlier confirmation hearings, his wife’s political activities, his work for Bush during the 2000 recount, and his support for indefinite detentions, etc.

He looks like a pro-business, party insider, who is pro-life, and pro-strong executive powers. His environmental record is bad. We definitely do not want this 50 year old man to become a Supreme Court justice. But is there anything we can do to stop him?

I think we need to keep looking because what we have right now doesn’t seem like enough to persuade 51 Senators to vote against him. It doesn’t seem like we can prevent 60 Senators from voting to end debate and force an ‘up or down’ vote.

I’ll come back to the question of what we should do if we know we can’t win. Now for the principle part of the story.

The party stands for a woman’s right to choose whether or not to end her pregnancy. Right now, that right is embodied in Roe. There are other ways it might be protected, and there are better legal arguments than Roe for justifying that protection. But Roe is what we have, so we have to defend it as if it were the right itself.

The right has argued against Roe from two angles, one based in their sense of morals, and one based on Roe as a written legal opinion. The legal angle doesn’t depend on whether or not abortion is a good or bad thing. It just offers the opinion that the federal judiciary has no authority to deny the states the right to take an interest in the unborn. From their point of view, there is nothing in the Constitution that gives the Federal government the authority to impose their will over the states’ interests.

However you feel about Roe as a decision, the underlying principle of Roe is that pregnancy and a woman’s relationship with her doctor are such complicated and personal matters that the state’s intetest in protecting potential life was not absolute. Blackmun went to great lengths to explain the many compelling reasons why a woman might want to terminate her pregnancy:

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Yet, Blackmun realized that aborting a fetus at a late stage of pregnancy, in particular when the fetus would be viable outside the women’s womb, is hard to decipher from infanticide.

Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute.

Blackmun asserted a right to privacy protected a women’s choice to have an abortion up to the second trimester, whereupon the states could require some medical or other compelling justification. After the second trimester the state was free to regulate or proscribe abortion except for the purpose of saving a woman’s life.

In some ways it was an ingenius decision. But it has always suffered from its reliance on a principle that is not absolute.

Yet, for many the principle is absolute. In fact Roe argued that her right to privacy extended all the way through to live birth. Blackmun didn’t agree, and I think most people agree that at some ill-defined point in a pregnancy the rights of the unborn child must take precedence over any absolute right to privacy.

For example:

The right to abort upon late discovery of complications for the fetus, such as would cause a short, painful life or a life without any prospects for a rewarding existence, could be decided without regard to privacy. In other words, the right not to bring such a life into the world could be established on different grounds.

Something Blackmun didn’t dwell on is the fact that many women do not choose to become pregnant. I haven’t reread his whole history of abortion, but I don’t recall him discussing a woman’s right to refuse her husbands advances, or rape, or incest, or intimidation, or manipulation, or sex as extortion. He also didn’t mention lack of sex education, lack of availability of contraceptives, poverty, or plain impulsive behavior.

Clearly a woman does not have an affirmative obligation to use birth control. She, therefore, should not have an affirmative obligation to carry any pregnancy to term.

Blackmun also failed to get into too much detail over the different ways a women’s privacy might be violated by abortion proscriptions. Presumably, he left this out because he reserved the States right to intervene after the first trimester.

He should have dwelled on it. We might not be having this culture war if he had explained what an imposition it is to have to defend the loss of a baby (a miscarraige) before the law. He might also have mentioned what an imposition it is on law enforcement to have to investigate pregnancies that have ended prematurely.

The right to privacy really only becomes compelling when one tries to envision these investigations, and what kind of actions law enforcement would be required to take to determine guilt or innocence. It also is disturbing to think what actions women and doctors would be forced to take to protect against wrongful prosecution.

Quite aside from the technical difficulties, early miscarraige is so common and so traumatic, that it is cruel to add on a feeling of potential criminal liability. There is no way to create a law protecting first trimester pregnancies that wouldn’t create all of these problems.

Which brings me back to Roberts. Is this man going to vote to overturn Roe? There are some stong indications that he will. But it isn’t certain. He could respect 30 years of precedent, even though he doesn’t like the decision. His effort to kill off the California toads is not encouraging. It indicates a judicial philosophy that is biased against the federal government dictating to the states. It also indicates a willingness to overthrow established law on quibbling technicalites.

A second consideration is whether Bush really wants to overturn Roe, or whether he just uses the issue cynically to attract people of a lower socioeconomic class to the Republican party. Many people think Souter was chosen to prevent Roe from being overturned, and while the son is not the father, they run with the same crowd of corporate bigwigs that don’t give a whit about abortion, except as a wedge issue. Dobson may not like Roberts once he sees him on the bench.

People can express their predictions as strongly as they want, but we really don’t know the answer.

Maybe it will become clear during the hearings. I highly doubt it will become crystal clear, but it might become obvious.

It’s difficult to scream about the threat to Roe when we have no solid facts to show it is actually in great peril. But, to me, this is the problem. Most people support Roe, especially when its reasoning is carefully explained. Many more have no idea what life will be like without Roe. They might think everything will be fine, but will change their minds when they see the result. Roe should be debated openly. And yet its fate is being determined in secret. Ironically, this has been a complaint of the right for 30 years. They feel that each legislature should decide the issue, and resent it being decided for them by 9 appointed judges. So be it, it’s ironic.

If we want to scream about this judge, IMO, we should scream about Roe being decided in secret. Fuck precedent, we want this judge to explain his position on this most important issue prior to being confirmed. We don’t want anyone to vote for this guy unless he is willing to tell us what he going to do with our established rights.

We should be clear that we don’t expect judges to decide cases before they hear the evidence. But Roe is different. Roe is huge. We can demand that he tell us what he thinks about how the case was decided, without asking him to speculate about a future attempt to overturn it.

In other words, the battle is in the hearing. Our prep work is to create outrage that Roe is being decided in a hearings room but no one knows which way it is being decided. This is unacceptable.

If we can’t peel off enough votes to win, should we filibuster anyway? I’ll leave my final answer for when we reach that point. Part of it will depend on how he answers the questions. Part of it will depend on how weak Bush is. Part of it will depend on whether the GOP will go nuclear.

None of us are going to like this judge no matter what he does with Roe. But defeating him won’t prevent an even more atrocious judge from being nominated. If we want to battle for a principle, let’s battle for an open debate about the future of the Constitutional right to privacy, and right of a woman to terminate a pregnancy.