The Courts & Reproductive Rights
Although the right to choose is guaranteed by the 1973 Supreme Court decision in Roe v. Wade, state legislatures have moved aggressively to restrict women's access to reproductive health services. Often, those restrictions are challenged on a legal basis, making the court system one of the most important fronts in the ongoing struggle to protect the right to choose. Fourteen states and the District of Columbia have not repealed their unconstitutional and unenforceable pre-Roe bans. In the event Roe is overturned these laws may be revived. Thirty states would likely severely restrict women’s access to abortion and 11 states may ban it outright. The current Supreme Court is narrowly divided, with three justices who clearly support the right to choose, three justices who would overturn Roe v. Wade, and three swing votes. The most recent decision addressing restrictions on the right to choose upheld the right — by a razor-thin vote. It has been nine years since a vacancy on the Supreme Court, the longest period in 179 years. The person who is elected president this year is likely to have the opportunity to replace at least one, if not more, of the justices who continue to uphold Roe's basic principles. President Bush opposes the freedom to choose. He has touted Justices Antonin Scalia and Clarence Thomas — the Court's two most virulent opponents of Roe — as his model justices. Just one more anti-choice justice could gut the protections of Roe. Federal Courts The Federal Appellate and District Courts are vital to protecting freedom of choice. The Supreme Court hears fewer than 100 cases per term. In comparison, in the year ending September 31, 2001, the circuit courts decided over 29,000 cases. The Federal courts are at a turning point. These courts will hear critical cases involving reproductive rights; if anti-choice Bush nominees are confirmed by the Senate, these courts may have the opportunity to restrict Roe or set in motion its reversal.
The judiciary is the branch of government that generally receives the least public attention, and is where anti-choice activists can go the farthest in flouting the strong public majority for reproductive rights without suffering a political price. It is critical for the Senate to fulfill its constitutional role to advise and consent regarding judicial nominees, ensuring Constitutional protections Americans have consistently embraced are not eroded by a president intent on packing the court with ideologues. Federal judges have lifetime appointments. The decisions they hand down have lasting and powerful consequences for generations to come. We cannot risk allowing more opponents of reproductive rights to gain a foothold in the federal judiciary. The lower federal courts, where many key reproductive rights decisions are handed down, are also in jeopardy. The Bush Administration is engaged in a campaign to pack these lower courts with judges who will roll back basic constitutional freedoms, including civil rights, workers' rights, and the freedom to choose. Moreover, anti-choice members of the Senate are pressuring pro-choice lawmakers to rush through the confirmation process of many of the President's more controversial nominees. The President nominates judges; the Senate confirms them. These are co-equal roles. Indeed, the Constitution requires the Senate to be a check on the President's power to nominate. Federal judges serve for a lifetime. It is the Senate’s responsibility to carefully scrutinize the records and positions of all the nominees to ensure that the nation's court system maintains a balance.
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