As soon as he was given the opportunity in last night's debate Obama did what one would expect of Obama - he lied, exaggerated, pandered and tried to demagogue the issue of Roe v Wade hoping that if all else fails, fear will convince Clinton voters concerned about Roe that he is their only salvation and so they had better vote for him. His biggest lie was his typically self-centered self-serving over the top statement that "Roe v Wade hangs in the balance" with regards to his getting elected. Yes and so does the sun rising in the east.
Roe v Wade doesn't hang in the balance but Leave It To Obama, the Eddie Haskell of American politics, to make that absurdly exaggerated claim and try and use it to get wayward Clinton voters to get with the program. It isn't the first time Obama has been willing to say anything to get people to vote for him. He's been doing it since he started running. The question is how many will believe him now?
The answer, given his track record and his willing assault on common sense is that no one should believe him. And as is always the case with Obama, there are nothing but good reasons not to. But he is counting on millions of voters, most of whom were Clinton voters, to shudder in fear at his statement that in this election "Roe hangs in the balance", and flock to him as the guardian of their reproductive rights. And he will say anything to scare them into believing it. And as usual, he won't let facts stand in his way.
McCain was clear that he feels Roe was wrongly decided. But so did Bush. And so did Reagan. And Roe is still standing. So having a President who feels Roe was wrongly decided means absolutely nothing. And what exactly does "wrongly decided" mean anyway? It means to those who argue the Constitutional validity of the decision, that the underpinning of the decision, the legal reasoning and Constitutional interpretation behind the opinion was wrong. But that doesn't mean the outcome was wrong ( legally or Constitutionally). And it doesn't mean that it would be overturned even on that basis.
There is also the point to be made that even if the virtually impossible happened, and that hypothetically there was somehow an entity that had the legal standing to challenge Roe ( something that everyone should realize has never happened) and it was appealed all the way to the Supreme Court ( a process that could take years in itself) and the case had enough unique ( and improbable) characteristics to allow the Court to even agree to hear the case, and, contrary to court history and inclination with regards to precedents, the Court struck down Roe, even that wouldn't make abortion illegal.
The entire Constitutional question over Roe is whether it was a federal issue or a states rights issue, meaning that hypothetically even if the virtually impossible happened and a case challenging Roe actually made it to the Supreme Court and Roe was struck down, it would only mean that each individual state would then have the right to construct its own laws regarding abortion. Kansas tried to pass a law not too long ago that would challenge Roe and many in Kansas considered it a laughing stock..And it didn't get very far.
Obama's fear mongering about Roe and his intellectually dishonest statement that in this election "Roe hangs in the balance" is Obama saying whatever nonsense he feels he has to say to get elected. This is Obama not caring about women's health but his own political health.
There is another point with regards to Roe and why its virtually impossible that it would get overturned which doesn't get a lot of mention. And that is the 14th Amendment and the equal protection clause. Those who argue that Roe was wrongly decided point to the majority opinion basing the decision on an "implicit right to privacy" in the Constitution which on the face of it, can't be found in the actual words of the Constitution. This is their basis for Roe being "wrongly decided". But the outcome of Roe still wouldn't change even if you could argue that the reasoning used in the opinion was faulty because an equally strong case can be made that laws banning abortion especially in the first trimester,violate the equal protection clause of the 14th amendment. The amendment is clear that the laws must be applied equally. and there can be no doubt that any wholesale law banning abortion discriminates against women and their right to make these decisions for themselves and so violates the equal protection clause. Why Roe wasn't decided on those grounds I don't know but accepting a "right to privacy" isn't necessary to uphold Roe no matter how many conservative judges are on the court.
And with regards to judges, another one of Obama's fear mongering tactics is this idea of appointing a Supreme Court judge that would protect Roe ( as demonstrated, based on the 14th amendment you don't have to accept the "right to privacy" argument to uphold Roe). But there would be no way to know if the next President will have the opportunity to nominate another judge in the first place, so on that point as well, Obama's statement that "Roe hangs in the balance" is absurd. Besides, if McCain were elected its unlikely that a Democratically controlled congress would confirm a judge that has a paper trail that would indicate he or she is sympathetic to overturning Roe(based on the "right to privacy" opinion cited). And even Scalia has stated he is not inclined to overturn court precedent unless there is a compelling reason. Given that the outcome of Roe would be the same based on an equal protection argument ,its not likely the Court, any court, would even hear a challenge to Roe in the improbable event that someone could mount one.
The most important thing to keep in mind about Obama's attempt to demagogue Roe with his statement that "it hangs in the balance" is this -- all the legal arguments and the history of the decision prove otherwise. We have had a conservative court for the last 8 years. We had a conservative leaning court even before Roberts and Alito, were confirmed. And the simple proof of that is the 5-4 decision in 2000 that gave Bush the Presidency,which many people thought was an abortion in and of itself.
Given a conservative leaning majority on the court for the last 8 years, if there hasn't been a challenge to Roe during the Bush presidency, it is not going to "hang in the balance" now. No matter how hard Obama tries to fear monger otherwise. What hangs in the balance is Obama's candidacy, not Roe.And that is all he cares about. And that is the song he is singing.
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