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Neil S. Siegel Headshot

Romney, Women, and the Supreme Court

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There's a reason why the Romney campaign talks about the economy, not reproductive freedom, every time it makes a pitch to women voters. If the campaign talked -- and talked candidly -- about how a President Romney would restrict access to contraception and abortion, it would have great difficulty getting women in swing states to vote for him.

When forced to talk about contraception, the Romney campaign insists that it does not want to restrict women's access; it just doesn't want employers, even non-religious employers, who oppose contraception to have to pay for it through the insurance plans they offer employees.

That might be less troubling if women could afford contraception by paying out of pocket. But for economically vulnerable women, there is a major difference between formal access to contraception and actual access. They depend on their employer-based health insurance to help pay for their contraception.

Governor Romney should speak to these women directly and explain why he thinks the religious liberty of non-religious employers is more important than women's interest in safe, effective, and affordable contraception. It will not do to change the subject and talk about the economy. An unwanted pregnancy has profound emotional, physical, and economic consequences for women and their families.

On abortion, Governor Romney says he believes that abortion should be available in cases of rape or incest, or to save the life of a pregnant woman. But the Republican Platform says otherwise: it does not make these exceptions. Anyway, these narrow exceptions are not nearly good enough to protect women's reproductive freedom.

For example, what if childbirth would cause grave physical harm to a pregnant woman? Where does the government get off coercing a woman in that situation to carry the fetus to term?

More important than any list of exceptions is the rule set forth by the Supreme Court in Roe v. Wade in 1973 and reaffirmed in Planned Parenthood v. Casey in 1992: women have a constitutional right to abortion until the fetus is viable outside the womb. Romney believes that the Court should overrule Roe and Casey, and if elected president, he may be able to make that happen.

Justice Ruth Bader Ginsburg is 79 years old. She is the oldest Justice. She has devoted her life to ensuring equal citizenship stature for women and members of other groups that traditionally did not count in constituting the People in whose name the Constitution purports to govern. Americans who believe in reproductive freedom hope that Ginsburg will remain healthy and on the Court for years to come. They fear that a President Romney would replace her.

If that happens, it is neither hysterical nor hyperbolic to suggest that Roe and Casey will be in danger of overruling. Justices Antonin Scalia and Clarence Thomas have voted repeatedly to overrule them. Chief Justice John Roberts and Justice Samuel Alito joined a majority opinion in an abortion case that merely assumed for purposes of analysis that Casey remained the law. Neither revealed whether they believe that the governing law for the past 40 years is still the law.

Justice Anthony Kennedy initially voted to overrule Roe in 1989 and then had a last-minute change of heart in Casey. Americans should understand just how close the Court came to overruling Roe in 1992. Since Casey, Kennedy has voted to uphold abortion-restrictive regulations that deny pregnant women the safest method of abortion in medical emergencies.

Even if Kennedy is not prepared to overrule Roe and Casey, the presence of a Romney nominee might mean that the newly composed conservative majority would no longer require Kennedy's vote.

Overruling Roe and Casey would be unacceptable for the majority of Americans, including many who are troubled by the morality of abortion. These Americans regard women as ethical beings, too. Most Americans believe that, at least during the early stages of pregnancy, women are entitled to make this profound moral decision without governmental interference.

It would be bad enough for a President Romney to cause such harm to America's women and their families. It would be outrageous for him to pull it off by distracting women now from focusing on what he has in store for them later.

The many women for whom abortion is the most important issue in this election are no fools. They are paying close attention.

Neil S. Siegel is professor of law and political science and co-director of the Program in Public Law at Duke Law School.

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