Roberts and Roe

by KATE MICHELMAN

[from the August 29, 2005 issue]

The debate over Judge John Roberts's nomination to the Supreme Court has alternated between speculation about whether he would vote to overrule Roe v. Wade and reassurances that he might not--or, at any rate, that his position on the case would not decide its fate. But for those concerned about women's lives rather than legal abstractions, the crucial issue is being overlooked: To place the lives and health of millions of women at risk, Roberts need not oppose Roe v. Wade itself; his interpretation of its protections need only be slightly more conservative than that of Justice Sandra Day O'Connor's.

To be sure, there is ample evidence that Roberts would follow the model of Chief Justice Rehnquist, for whom he clerked, and vote to overrule Roe outright. Roberts, after all, urged the Court to do precisely that when he served in the George H.W. Bush Administration. But focusing the debate exclusively on the survival of Roe itself allows Roberts to hide in the shadows of speculative questions--even though his patently clear conservatism is considerable cause for concern.