CHUCK MALLOY: Overturning U.S. abortion law won’t be easy

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Republican candidates over the years, including those running in Idaho, have done a good job steering away voters from basing votes on a single issue — specifically abortion rights.

Pro-choice advocates may never agree with Republicans on the abortion issue, but they might like a candidate’s stand on other issues, such as the economy or national defense. And besides, abortion (Roe v. Wade) repeatedly has been upheld by the Supreme Court since 1973. So, there’s not much damage that a congressional, or legislative candidate, can do to the issue.

That is, until now. The confirmation of Justice Brett Kavanaugh to the U. S. Supreme Court sheds new light on the abortion issue, and Planned Parenthood is preparing for the worst. Feminist activist Miranda Martin, in a recent commentary for Ms. Magazine, says that Planned Parenthood is planning a multi-million-dollar national campaign aimed at keeping abortion available and Roe v. Wade as part of U.S. law.

“Kavanaugh’s confirmation to the court tips the scales against Roe for the first time since it was decided in 1973,” Martin wrote. “He would likely cast the fifth vote necessary to overturn the decision and give states the power, once again, to criminalize abortion providers and their patients.”

She says Planned Parenthood has been bracing for a battle over abortion since President Trump was elected two years ago. Kavanaugh’s appointment to the high court heightens the urgency.

For the immediate future, the damage has been done to the pro-choice advocates. The pro-life crowd has the majority it wants on the high court, and Trump could add to that conservative majority as long as he stays in office.

But the tide could change dramatically in future elections. I’ve long held the feeling that Republicans, despite their anti-abortion rhetoric, are the last people who’d want to see Roe v. Wade overturned. They know they’d be out of power for generations to come the minute the Supreme Court overturns Roe v. Wade. Numerous polls show overwhelming support for a woman’s right to choose whether to have an abortion.

In Idaho, the abortion issue works in favor of the anti-abortion Republicans. Californians flocking to the Gem State want nothing to do with the liberal agenda, or Democrats in general. But I suspect a reversal of Roe v. Wade would hit blue and swing states like a mushroom cloud.

The political side of the abortion issue is relatively easy. Congress does not have the power to overturn Roe v. Wade, but candidates can take a stand on either side.

“It’s a wonderful hot-button issue, and it has kept a lot of people in office over the years,” said Jim Jones, a retired Idaho Supreme Court justice. But for U.S. Supreme Court justices, overturning a law that has been in place since 1973 is not so easy.

“The court has taken a stand, saying women have a constitutional right to right to seek an abortion under certain circumstances,” Jones says. “If you start overturning things like that, then you take predictability out of the system and it takes away from the respect people have for the courts. If we start wearing away that trust, it makes judges look like politicians, and we can’t afford that.”

Jones is not convinced that justices — even those who conceptually are opposed to abortion — would want the legacy of being on the court that overturns Roe v. Wade. Or, being the deciding vote that returns us to the bad old days of abortions being done by coat hangers in back alleys.

What’s more likely to happen, Jones says, is that the court could establish guidelines that peck away at abortion rights — if not making abortions practically impossible.

In other words, we’d have an “activist” court — where justices make new laws, rather than interpret what’s already there. I’m not sure how many on the court would enjoy being branded as an “activist” judge.

But to those wanting to abolish Roe v. Wade, the “conservative” brand of activism would be OK. It’s those darn “liberal” activists who should turn in their robes.

• • •

Chuck Malloy, a Silver Valley native and longtime Idaho journalist, is a columnist with Idaho Politics Weekly. He may be reached at

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