Abortion and the Bush Court

The future of women’s right to a safe, legal abortion is on the chopping block as the U.S. Supreme Court prepares to rule on a New Hampshire parental notification law.

On November 30, the Court–led by Bush crony and new Chief Justice John Roberts–began hearing arguments in the case of Ayotte v. Planned Parenthood of Northern New England, which will decide the constitutionality of a state law barring doctors from providing an abortion to a minor abortion without notifying a parent, and requiring a 48-hour waiting period.

More than 40 states already have parental notification or consent laws, but what makes New Hampshire’s different is that it doesn’t include an exception for a woman’s health. The only exception is “imminent death.”

While this law may fall short of directly challenging Roe v. Wade, the 1973 Supreme Court ruling that made abortion legal nationwide, it piles on yet another obstacle to women seeking abortions. Its victims are among the most vulnerable–young women who may not be in the position to talk to a parent about their choice.

If Ayotte is upheld, it sets a precedent for further restrictions–such as the ban on a late-term procedure misnamed “partial-birth” abortion by the right. In some states where this ban has gone into effect, all abortion procedures have been halted–because the legislation is so vaguely worded and doesn’t use real medical terminology.

A federal ban on what the right claims are “partial-birth” abortions was passed in 2003, but the courts blocked it from taking effect because the law lacked an exception for the woman’s health. But a Supreme Court decision upholding Ayotte could change that.

As if this weren’t bad enough, the Senate will begin confirmation hearings January 9 on Samuel Alito, the Bush administration’s pick to replace retiring Justice Sandra Day O’Connor.

Last week, press reports exposed the existence of a 1985 memo showing that in Alito’s application for a promotion within the Reagan administration, he outlined a strategy for overturning Roe v. Wade. Alito’s method was to avoid a “frontal assault” and instead chip away by “mitigating its effects.” “[T]he Constitution,” the likely next Supreme Court justice argued, “does not protect a right to abortion.”

Also last week, Alito’s membership in the rabidly anti-affirmative action (even anti-coeducational!) group “Concerned Alumni of Princeton” was revealed.

There’s no doubt that Alito’s nomination is meant to tip the balance of the Court further to the right–putting rights we take for granted today, like the right to choose abortion, in jeopardy.

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EVERY U.S. schoolchild can probably rattle off the same phrases about the U.S. Supreme Court–part of a delicate system of checks and balances, wise and educated men standing above the fray of partisan politics. But what goes on behind the gleaming marble walls is very different.

While the idea of hiring your best friends to one of the most important jobs in Washington–for life–may seem like a uniquely George W. Bush way to do things, crony appointments of Supreme Court justices goes back to Andrew Jackson at least. Early on, presidents handed out Court appointments to their buddies and business associates, with the assurance that their political agenda would be carried on.

The idea that the Supreme Court isn’t really neutral is hardly lost on the American public. A Newsweek poll following the 2001 Bush v. Gore decision, which stopped the Florida vote recount and awarded the presidential election to Bush, found that 65 percent of those surveyed believed politics or partisanship played a role in the Court’s decision.

Today, there’s an important difference in how the mainstream political debate about Supreme Court justices plays out. For liberals, the question is preserving the “balance” of the Court; for conservatives, it’s about thwarting “activist judges.” Both sides assume that, first, justices have no opinions of their own (which, of course, they do), and, second, they make decisions based on some sort of pure legal ideal. The Court’s real role, however, is to act in the interests of the rich and the powerful.

In some cases, the justices and the powerful are one in the same. This was true in the Dred Scott decision of 1857, in which the Court, divided between Northern and Southern interests, ruled in favor of the slave masters.

As the Albany, N.Y., Evening Journal commented, “Five of its nine silk gowns are worn by Slaveholders. More than half its long Bench is filled with Slaveholders. Its Chief Justice is a Slaveholder. The Free States, with double the population of the Slave State, do not have half the Judges. The majority represent a minority of 350,000. The minority represent a majority of twenty Millions!”

When the interests of Corporate America are at stake, the highest court heeds their call. In the early part of the 20th century, the Court overturned several laws designed to improve workers’ living standards or make it easier to organize unions. The justices also undid congressional attempts to shorten the workday, outlaw child labor and impose a minimum wage for women.

During the Great Depression of the 1930s, the debate within the U.S. ruling class over New Deal programs was expressed in the Court, which blocked so many anti-poverty policies that Franklin Roosevelt tried in 1937 to pack the Court by appointing more justices.

Likewise, in wartime, the Court has pitched in, rolling over civil liberties in the interests of U.S. imperialism. During the First World War, the Court gave the green light to the persecution and imprisonment of pacifists and “foreigners” under the federal Espionage Act. It okayed the imprisonment of Japanese Americans in internment camps during the Second World War. During the Cold War, the justices came back early from vacation to speed along the executions of so-called “atomic spies” Ethel and Julius Rosenberg.

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WHEN THE views of the status quo dominate in society, the Supreme Court usually echoes them. But when these ideas come to be questioned in society at large, the effect is felt among the justices.

One example is racial segregation in the U.S. South. The 1954 Brown v. Board of Education of Topeka decision, which overturned the “separate but equal” standard established by Plessy v. Ferguson in 1896, was a response to the changing political climate concerning race in the U.S.–the clash between racist laws and an African American population that was no longer going to stand for this.

Likewise, during the early 1970s, the Court responded to changing attitudes and the political demands of social movements.

In 1972, a Court led by Richard Nixon appointee Warren Burger ruled against the death penalty in Furman v. Georgia, stating that capital punishment was “cruel and unusual punishment.” In 1973, it ruled in favor of a woman’s right to abortion in Roe v. Wade.

What led up to these groundbreaking wins wasn’t superior legal argument or some sort of Supreme Court change of heart, but the pressure of social movements grown so strong that they couldn’t be ignored.

The movement for abortion rights had been building, with individual states repealing anti-abortion laws and a vocal activist minority tying abortion rights to the fight for women’s liberation. At the same time, other social movements–demanding Black Power, gay liberation, Native American rights, and withdrawal of U.S. troops from Vietnam–blossomed, giving confidence to all the struggles.

This helped shift the political climate generally, which in turn forced a shift in the Supreme Court, even though it was made up mostly of Nixon appointees.

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JUST AS these rulings didn’t come without pressure, the gains they promised don’t come without struggle either.

For example, Brown v. Board of Education would have meant little had civil rights activists and students in the South not taken action to force local governments to comply.

The same is true about Roe. Almost immediately after the ruling, the conservatives set out to gut it. And in the absence of a strong and sustained movement, they’ve gained a lot of ground.

The political climate can be shifted back–if our side gets organized and creates a vocal opposition to the Bush administration’s assault. This means organizing protests in the streets–but also making the arguments that puts the political debate back on our terms,

As historian and activist Howard Zinn wrote recently in the Progressive magazine: “It would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice…

“The right of a woman to an abortion did not depend on the Supreme Court decision in Roe v. Wade. It was won before that decision, all over the country, by grassroots agitation that forced states to recognize the right. If the American people, who by a great majority favor that right, insist on it, act on it, no Supreme Court decision can take it away. The rights of working people, of women, of Black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves.”

ELIZABETH SCHULTE writes for the Socialist Worker.