Splitting the anti-abortion base

DAHLIA LITHWICK covers the U.S. Supreme Court for Slate.

THERE IS NO WAY to assess the signals and counter-signals, the coded winks that have passed in these last weeks between Karl Rove, James Dobson, Rush Limbaugh and President Bush, without arriving at this inevitable conclusion: It’s all about Roe vs. Wade.

How strange.

A 30-odd-year-old Burger court opinion -- hardly singular compared with dozens of cases that came out of the Supreme Court during the 1960s and ‘70s. A holding no more dramatic than Lawrence vs. Texas, the gay sodomy case decided in 2003; no more startling than Kelo vs. New London, this term’s eminent domain case, and no more consequential than Bush vs. Gore.

Yet with the nomination of Harriet E. Miers to the court, the political right (or at least a very vocal part of it) is laser-focused on -- and singularly determined to redress -- only Roe. The reason for this situation, and the political fallout from it, go a long way toward explaining the sudden implosion of American conservatism this October. Roe vs. Wade has garnered more than its fair share of attention over the last few nomination hearings. But, largely because of the administration’s decision to make it the centerpiece of the Miers nomination, it is, right now, the only game in town.


But first, consider this: Roe is quickly becoming legally irrelevant. The number of abortions in the United States has fallen dramatically in the last two decades and will continue to do so with the increasing availability of better contraception and technologies to terminate unwanted pregnancies earlier. For another thing, whether or not there is a federal constitutional right to abortion is by no means the last word in the abortion wars. The fight has moved, in recent years, to the state legislatures, which have enacted significant restrictions on the procedure -- from parental notification laws to bans on so-called partial-birth abortions. Roe stopped being where the real abortion action was a long time ago.

And finally, consider the polling data: Most Americans support Roe. The most recent Gallup Poll -- from August of this year -- shows that 54% of respondents consider themselves to be pro-choice, while 38% think of themselves as pro-life. A Gallup Poll taken last July showed that 68% of Americans do not want Roe overturned, and only 29% do. The most interesting aspect of that polling data, however, is this: These numbers have shifted almost not at all in 30 years. Despite all the screaming and sharpening of pitchforks since Roe came down in 1973, not a lot of minds have changed on the subject.

So why all the whispering -- in the key of Roe -- about Miers? About her church and her heart and her donations to antiabortion groups? Why might this old, not terribly relevant case sink her nomination? Because the furor over abortion has been kept alive in the hearts of two extremely different classes of Americans ever since the case was decided, but now they suddenly are finding that their interests diverge. And Bush can’t afford to mollify them both.

On one side is the small but passionate minority of Americans who truly believe that abortion is murder and that every abortion that has taken place since 1973 is a sin. With stakes that high, it’s hardly a wonder that, to these people, Roe stands out among the “commerce clause” and ERISA cases the court has decided in the last 30 years.

On the other side are the process people: People who may not care one way or another about sins against the unborn but who are deeply concerned -- incensed, even -- about sins against the Constitution. These are the folks who gave birth to the Federalist Society, the scholars and pundits who believe that Roe represents the high-water mark of judicial overreaching. They reject the notion of the constitutional right to privacy and the fuzzy kabalistic language of “penumbras” and “emanations” that allegedly waft off the Bill of Rights. Both camps want Roe overruled, but one seeks moral purity and the other seeks legal purity.

In a way, Bush attempted to throw a bone to each camp this fall. John G. Roberts Jr. represents the crisp, cool, dispassionate thinker who has long railed against judicial overreaching. Miers was a nod to the other side. With the focus on her heart and her evangelical church, the president was suggesting that her values have nothing to do with parsing the nuances of the due-process clause. Miers would object to Roe for the same reason as any other evangelical: It’s immoral.


Bush miscalculated on several fronts. For one thing, he misjudged the outrage of the legal purists, who want to see Roe overturned through brilliant legal reasoning. And he dismissed the quid pro quo expectations of the evangelicals who held their fire through the Roberts hearings only because they were certain a right-wing activist -- someone clearly on record as eager to overturn Roe -- was right behind. And he missed the subtext of the promise he made last November: to appoint a Thomas or a Scalia, someone who combined the moral outrage of the evangelicals with the intellectual firepower of the Federalist Society.

Instead, Bush gave conservatives one legal purist and one evangelical. Roberts will be reluctant to overrule Roe on principled grounds, and Miers hasn’t the legal or intellectual heft to command a majority to follow her. Bush gave conservatives one of each because he read the polls I described earlier: The nation doesn’t want two more Scalias on the court because the nation doesn’t want Roe overruled. Overruling Roe would galvanize Democrats in ways known heretofore only in Rove’s nightmares.

There are two incredibly passionate, angry and vocal groups in Bush’s base that have organized, agitated and fundraised their way to political prominence over Roe alone. This was supposed to be their moment, and the president stole it. Roe’s main importance is symbolic. But Bush, of all people, should have known that sometimes symbols can be more powerful than politics, pragmatism and polls.