Last night, Mitt Romney told CBS News, "My position has been clear throughout this campaign. I’m in favor of abortion being legal in the case of rape and incest, and the health and life of the mother. But recognize this is the decision that will be made by the Supreme Court. The Democrats try and make this a political issue every four years, but this is a matter in the courts. It’s been settled for some time in the courts." That's disingenuous, and not just because his position has been anything but clear.
Not only does the president have a fair measure of federal power on issues of reproductive rights (including the global gag rule), but there are several key abortion-rights cases winding their ways through the federal courts. If they go before a court amenable to rewriting current abortion jurisprudence, a new framework could change a lot about abortion access in this country. As Priscilla Smith, who argued the last abortion case before the Supreme Court, told me recently, “Roe’s anniversary is next year, at the end of January, and by then, we should know its future.”
Smith's case, the challenge to the federal Partial Birth Abortion Ban (which was upheld), is a potential harbinger about the difference a single justice makes. In 2000, the court ruled on a Nebraska version of the same law and clarified that abortion bans had to include a health exception; in 2007, it upheld the federal version without demanding a health exception. What had changed? Samuel Alito replaced Sandra Day O'Connor. Alito and John Roberts, along with that federal ban on a particular late-term abortion procedure, were the bulk of what abortion opponents could show as the fruits of the George W. Bush presidency.
It hasn't come up much this cycle yet, but there are four justices in their 70s, including women's rights stalwart Ruth Bader Ginsburg, the oldest member of the court. A fresh round of antiabortion innovation in the states -- where the action has largely moved -- is currently being challenged in several federal courts, where recently, a lot has depended on which president appointed that lower-court judge. President Obama may have been notoriously slow and willfully non-confrontational in his federal court appointments, but there's no question that a Romney presidency would involve appointments throughout the federal court system that would be particularly sympathetic to upholding these laws, which range from later abortion bans to regulations designed to put abortion clinics out of business to defunding Planned Parenthood.
And several cases are already poised to reach the Supreme Court: Challenges to forcing women to look at and listen to ultrasounds before having an abortion, which have yielded conflicting decisions in lower courts, and quite possibly a novel challenge to abortion-rights law by trying to make it all about what happens to the fetus. As Smith said in our interview about the statewide bans on abortion several weeks before viability, “I think they’re not counting on Kennedy for this law. I think what they’re counting on and hoping for is a Romney victory and another judge. That could happen.”
In fact, it's what his nose-holding social conservative supporters are counting on. They're the ones who likely grimaced yesterday when Romney said, "It’s been settled for some time in the courts." The savviest abortion opponents aren't trying to go for everything at once, however emboldened they've been lately, but they know this is anything but settled.