Kerry Could Appoint Anti-Abortion Judges

Ron Fournier of the Associated Press reports that John Kerry, who voted to confirm Antonin Scalia in 1986, "said yesterday he's open to nominating anti-abortion judges as long as that doesn't lead to the Supreme Court overturning the landmark 1973 ruling that made abortion legal," disappointing defenders of reproductive choice: "Kerry's comments on judicial nominations drew a concerned response from the Planned Parenthood Action Fund, with President Gloria Feldt saying, 'I'd like to hear him use language that is stronger'" ("I Could Appoint an Anti-Abortion Jurist, Kerry Says," The Seattle Times, May 20, 2004). Moreover, Kerry calls "himself a strict constructionist, a phrase Bush has used to describe himself" (May 20, 2004).

Will liberal feminist organizations such as Planned Parenthood, NARAL, and NOW continue to give the Democratic Party a blank check? Or will they be able to reassess their electoral strategy and tactics, demanding unconditional commitment to feminist positions on abortion and other issues of crucial importance to women in exchange for feminist votes? Not very likely. Kerry's latest overture to the right, however, should prompt rethinking among rank-and-file feminists who have carefully surveyed the terrain of the real battleground of reproductive rights and freedoms today.

The right do not have the cultural hegemony to overturn Roe v. Wade itself: "For its broader goals, the antiabortion movement still can't make the political math work. The Senate has a Republican majority, but at least 53 Senators are on record as favoring Roe. And the public is not prepared to see it overturned. In the latest TIME/CNN poll, 55% of respondents said they support a woman's right to have an abortion in the first three months of pregnancy" (Karen Tumulty and Viveca Novak, "Roe v. Wade At 30: Under the Radar," Time, January 27, 2003). Therefore, they have pursued a strategy of limiting our rights and freedoms by discouraging doctors from providing abortions ("The number of physicians providing abortion is down to 1,800 nationally, from nearly 2,400 in 1992, and 87% of U.S. counties have none at all, according to the Guttmacher Institute" [January 27, 2003]), placing restrictions on the right to abortion at the state level ("In the past seven years, 335 new restrictions have been put on the books around the country, according to NARAL" [January 27, 2003]), and giving legal personhood to the fetus through such legislations as "the Unborn Victims of Violence Act," "a federal law making it a crime to cause harm to a 'child in utero,' recognizing everything from a zygote to a fetus as an independent 'victim,' with legal rights distinct from the woman who has been attacked" (Lynn M. Paltrow, "Policing Pregnancy," April 2, 2004).

Given the nature of the right-wing guerrilla warfare on women, feminists cannot afford to settle for a weak promise to defend Roe v. Wade alone, treating it as if it were the Maginot Line, because right-wing legal, political, and cultural attacks on women have come, and will be coming, from different directions. The sort of judicial appointment to which Kerry is open -- appointments of anti-abortion judges who would place more and more restrictions on women's right and access to abortion and confer legal personhood on fetuses in the name of whose interest men in power can criminalize pregnant women and medical doctors, even while keeping Roe v. Wade on the books -- is exactly what plays into the hands of the most devilishly clever strategists of the anti-abortion movement. We, feminists, need to let Kerry know that in no uncertain terms, rather than meekly mumbling that his language fails to meet our expectations.

N.B. The same AP dispatch that tells us of Kerry's overture to the anti-abortion right also goes on to say, "If elected, Kerry promised that virtually all U.S. combat troops will be out of Iraq —- away from 'the death zone' —- by the end of his first term" (emphasis added, May 20, 2004). That is a position that guarantees that Kerry, if elected, will serve only one term . . . . if he gets elected at all: "Democratic strategist James Carville told reporters at a Christian Science Monitor breakfast yesterday that Nader brings clarity to an issue that troubles many Democrats. 'Nader has a simple thing he's saying: bring the troops home,' he said. 'It's easy to understand'" (Dan Balz and Jim VandeHei, "Kerry, Nader Meet and Go Separate Ways," May 20, 2004).