Since Roe v. Wade was imposed on us by the Supremes 37 years ago, there has been a pervasive “abortion distortion factor”:
The “Abortion distortion factor” is that phenomenon whereby when established rules of law encounter the abortion right, the established rule is bent to accomodate the abortion right.
(Bopp, James, in A Passion for Justice – A Pro-life Review of 1987 and a Look ahead to 1988, at page 80) That factor has been huge in most Supreme Court appointment battles since 1980 – generally couched in code words and litmus tests that fooled no observant observer.
The successor for Justice Stevens may face a significantly different constellation of questions, centering on “Obamacare” partly because that issue works to the benefit of the Republicans though so pervasive is the Abortion Distortion Factor that it won’t be entirely out of play:
Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. “How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?” asks former New York Lt. Gov. Betsy McCaughey in The Wall Street Journal. “Either your body is protected from government interference or it’s not.”
McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn’t set standards for doctors to administer lethal drugs to terminally ill patients under Oregon’s death with dignity act. So does the Constitution empower the feds to regulate non-lethal drugs in contravention of other state laws?
Such questions may not persuade an Obama nominee to rule that Obamacare is unconstitutional. But they can raise politically damaging issues in a high-visibility forum at a time when Democrats would like to move beyond health care and talk about jobs and financial regulation. Stevens apparently timed his retirement to secure the confirmation of a congenial successor — but some Democrats probably wish that he had quit a year ago, when they had more Senate votes and fewer unpopular policies.