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'Undue burden,' not Roe, defines Scalia Lite Monday, Nov 14, 2005 By John Brummett Pro-lifers who rejected Harriet Miers for the Supreme Court because her opposition to abortion wasn't a verifiable cinch instantly rejoiced over the fallback nomination of Samuel Alito. That tells you quite a bit right there. Since then, the White House has been trying to assure us that Alito is a mainstream jurist who respects precedent and whose supposed certain determination to repeal Roe v. Wade amounts to pure speculation, and is wholly unknowable. We're still waiting for the pro-lifers to retract their rejoicing. Failing that, we can suspect there might be something inherently more honest about instinctive rejoicing than strategic spinning. Why does the White House even bother to spin? It's because the only way Democrats could possibly get away with filibustering Alito's nomination, or the only way Alito might be rejected absent a filibuster on an up-or-down vote, would be if it were clearly demonstrated that his confirmation would doom Roe v. Wade. Abortion is an agonizing issue. Many people try not to think about it. But, if forced to consider it, a majority of Americans believes that pragmatism demands that it remain a right. So the White House wants us to see Alito as judiciously detached and acceptably iffy on Roe v. Wade, like John Roberts. What I'm about to say may surprise you. It is that the White House is right that Alito is iffy on Roe v. Wade. But that's fairly irrelevant. Pro-lifers rejoice over Alito's nomination not because he would assuredly repeal Roe v. Wade. He very well might not. Pro-lifers rejoice because he clearly doesn't mind putting serious burdens on women before they may exercise their right under Roe v. Wade. Pro-lifers know that they stand on the very precipice of replacing, in Sandra Day O'Connor, the moderate, pragmatic jurist who wrote the currently prevailing standard - that states may not restrict abortion to the point of placing an "undue burden" on a woman's right - with a man who is Scalia Lite and has made plain he won't find many burdens undue. The pro-life movement's legal strategy is not so much obsessed anymore with repealing Roe v. Wade altogether. It is to go nationwide with what's been happening in Mississippi and Pennsylvania, the latter of which James Carville once described as Philadelphia surrounded by Alabama. Mississippi has one abortion clinic left, in Jackson. Its story was told last week on "Frontline" on PBS. The clinic surely is not long for the world, considering the onerous restrictions coming regularly out of the Mississippi Legislature. One is that a doctor may not perform abortions at the clinic unless he has admitting privileges at a local hospital. It surely won't be long before the anti-abortion zealots bring enough pressure to bear on local hospitals that hospital officials will be afraid to grant or renew those admitting privileges. A poor woman in the Mississippi Delta effectively has no right of abortion already, if right is taken to imply access. Pennsylvania is the state that had the law saying a woman had to notify her husband before getting an abortion. Alito, sitting on the relevant circuit court of appeals, said that wasn't an undue burden. He said it might even alleviate financial worries and otherwise mitigate a woman's hesitance to seek an abortion. The full appeals court and the Supreme Court, being eminently more sensible, disagreed. Republicans are working overtime to try to mitigate that little gem from their "mainstream" nominee. They say the law in question merely required a wife to sign a statement that she'd talked to her husband. In other words, we should excuse Judge Alito's extremism on the basis that battered women always had the right to lie. ------- John Brummett is an award-winning columnist for the Arkansas News Bureau in Little Rock and author of "High Wire," a book about Bill Clinton's first year as president. His e-mail address is jbrummett@arkansasnews.com. |
