A shift in antiabortion strategy?
Would he or wouldn't he? That's the question, of course. Would John Roberts vote to overturn Roe v. Wade, the 1973 decision that made abortion legal across the country? Or, given the opportunity, would he decide that Roe is "settled law," as he told the Senate Judiciary committee two years ago?
A Supreme Court vacancy, of course, is about a lot more than one issue, as we will be reminded repeatedly in the next few weeks. It's about how the Constitution is interpreted on any number of issues and topics, from granite representations of the Ten Commandments to the treatment of prisoners at Guantánamo Bay. But Roe is not a small issue in terms of the Constitution or politics.
For a whole host of voters, including many Roman Catholics in swing states, abortion is a single issue that can determine voting allegiances.
Abortion occupies a special place in Washington. In a town where the main industry spins around how one parses words and phrases, it's an exception.
That's what's so commendable and maddening about the debate. For many people, the gray area is essentially nonexistent. Depending on where you stand, you're either for killing unborn children or for taking rights away from women. There's not much wiggle room there - and politicians love wiggle room.
That's why, when you get right down to it, those who want to ban abortion face a difficult road ahead (and, no, overturning Roe wouldn't make abortion illegal everywhere). The fact is that the majority of Americans want abortion to be rare. But they want it to be safe and legal with restrictions, which is what it is now.
Those who want to make abortion illegal are basically swimming against the tide. Whether you think banning abortion is right or wrong, the politics of such a move could be dangerous to the GOP, which has a strong "pro-life" plank in its platform. It would not only energize pro-choicers, but potentially alienate "purple America," the moderates who might vote for a Republican in one election and a Democrat in the next. The one thing those voters don't like is the party in power going against the perceived public will.
Abortion foes understand this equation. That's one reason President Bush has talked so much about the need to "change hearts" rather than change laws.
Faced with this problem and sensing and hoping that Roe may soon be overturned, the anti- abortion activists' strategy is beginning to become clear.
Last week an antiabortion activist group called the "Life Legal Defense Fund" sent out an e-mail informing recipients that "overturning Roe will not impact on the legality of abortion in most states" and 90 percent of the population lives where laws would keep abortion legal. Rather, the group says, it would simply send "the issue of when abortion should be permitted back to the American people."
In other words, after years of arguing that Roe is a life or death issue, antiabortion activists are beginning to argue that Roe isn't the real issue. The real issue is letting you, the voter, decide about abortion. That way abortion opponents can argue they aren't interested in overriding the voters' will, they simply want to return power to the voters.
Or at least return it to them state by state. If there were a national law they probably would not enjoy the result, but if each state gets to vote, a state here and there will probably ban abortion. It's hard to believe the antiabortion force would be happy with that as a final resting point. After all, anyone who believes abortion is murder can only work for its complete abolition. But it's an interesting approach and, who knows, it could even work. "Let each state decide" is a battle cry many Americans believe in.
The problem is that saying overturning Roe would simply "return power to voters" is understating the impact by several magnitudes.
The state-by-state fight would be long and grueling. The nation's civic discourse would almost certainly grow coarser. Imagine 50 state legislatures facing the issue day in and day out in an even more involved way than the federal government currently does. And you can make jokes about red and blue America if you want, but if Roe is overturned, you ain't seen nothing yet.
For some people, of course, the abortion issue is more than worth it. The stakes, they argue, are ultimately much larger, the impacts much more serious. That's a perfectly acceptable point of view, but let's be honest about the stakes.
If Roe is overturned, the abortion wars won't be over; in many ways, they'll just be beginning.
• Dante Chinni writes a twice-monthly political column for the Monitor.