As November 4 draws ever closer, the amount of attention Americans are paying to the issue of Supreme Court appointments is ramping up.  Which can only mean one thing — intense focus on the only Supreme Court decision most people know by one word alone: Roe. Short for Roe v Wade, it is the 1973 decision that legalized abortion for all women in the first trimester of pregnancy.  And it's not just rabid anti-choicers voting solely on abortion who think of Roe as the most relevant legal issue there is during an election season. In The Nine, his history of the recent Supreme Court, Jeffrey Toobin argues that opinions and leanings on Roe have done more to shape Supreme Court appointments than any other legal issue. 

What makes this situation peculiar is that Roe was hardly earth-shaking precedent.  By any reasonable measure, Roe was just the logical conclusion of a decision made by the Court eight years earlier. Griswold v Connecticut laid out the basic idea that citizens (in this case, married citizens) had a basic right to privacy that included sexual choices, medical decisions made with a doctor's supervision, and a right to determine one's own child-bearing.  Once privacy was established as a right that superceded the right of the state to appease moralists who wish to regulate their neighbors' sexual behavior, the other dominos fell. 

Griswold only covered married couples, but the court quickly found that if married couples had privacy rights, so did single people.  And if a single person had a right to prevent pregnancy, then a single woman surely had the right to terminate one, at least when it's so early in the pregnancy that the state has no legitimate interest in protecting the fetus.  (Contrary to the claims of anti-choicers, Roe does address the notion of fetal personhood.  The justices just reasonably realized that a fetus so early in its development demands less state protection than one later on in a pregnancy.  Roe fits a common sense understanding of pregnancy, wherein the fetus is treated more like a baby as it becomes more like a baby.) Years later, the justices established that if single heterosexuals had the right to privacy, so do homosexuals.  

The point should be clear: Anti-choicers who petulantly claim that there's no right to privacy in the Constitution are attacking many more decisions than Roe.  They're gunning for a return of contraception bans and sodomy laws.  In South Dakota, they're putting an abortion ban on the ballot with the hopes of challenging Roe.  The Colorado ballot initiative to define a fertilized egg as a person, however, goes even further, exploiting the ambiguity of when pregnancy begins (when we can't see it happening) to create the groundwork for challenges to IUDs and hormonal contraception. VIDEO: Does Life Begin at Fertilization?

As Cristina Page argues in her book How The Pro-Choice Movement Saved America, it's nearly impossible to overturn Roe without attacking the idea that privacy is a right guaranteed to all Americans, which means overturning Griswold.  A majority of Americans don't want to see Roe overturned, but an ever greater majority don't want to see the right to contraception called into question.  Most aren't aware that the anti-choice movement has contraception access in its sights, in fact.  A grand overturn of privacy rights would be wildly unpopular.  Would the court risk it, knowing that it might have massive effects at the ballot box and on future court appointments?

Overturning Roe without attacking privacy rights seems more possible now than it used to be, however.  The appointment of John Roberts to the Chief Justice of the court changed the game.  As Jeffrey Toobin describes him, Roberts is a sharp man who finds sport in the art of shoehorning right wing conclusions into presumably liberal precedent.  The court under Roberts has managed to wreak havoc on presumably established law like those desegregating schools and guaranteeing a woman's right to equal pay for equal work by cleverly reversing prior decisions without coming right out and reversing them.  Through hoop-jumping legal finesse, it's entirely possible that the Roberts court might find a way to allow abortion bans without overtly overturning precedent.

VIDEO: Monica's AbortionHow?  The tactic that presents itself is the one we saw used in Carhart v. Gonzales.  In his opinion on the case, Justice Kennedy warmed himself up to the anti-choice view of women as inferior decision makers whose inability to fully understand the ramifications of their own reproductive decisions meant that they should have their rights in that area restricted.  Kennedy's feeling seems to be women who get late term abortions can't understand how gruesome they are, or they'd choose differently.  Justice Ginsburg's compromise solution — making it clear to women what is about to happen and honoring their ability to make decisions — was dismissed.  With court precedent singling out potential mothers as unique beings who can't be trusted to know what they really want, perhaps the logic can be extended to all abortions without directly destroying the right to privacy (for men at least).

No rights are absolute, and in Roe the court found that the state had the right to limit privacy once the pregnancy had advanced enough that the state had an interest in the fetus.  Attempts to redefine when the state interest could come into play have largely met with failure, because basic biology intercedes.  However, the anti-choice argument that met with success in Carhart was that the procedure in question should be banned to protect women from their own inability to make the "correct" decision without firm state guidance.  Could a Roberts court expand a "woman protection" argument that would ban abortion without directly overturning Roe, the right to privacy, or the trimester system set up by Roe?  It's possible, even though there's no evidence that abortion is bad for women or that women are inadequate decision makers compared to men that require their choices constrained for their own good.   

Of course, legal maneuvers to ban abortion without touching contraception will not make anti-choicers happy for long.  But if the court manages to overturn Roe without overturning it in the way that I outline here, then it wouldn't be much of a leap to suggest that women-controlled contraception also cannot be left in the hands of women.  Of course, this entire scenario relies on the idea that the court will just ignore the equal protection requirements of the Constitution that make it hard to put women in a separate class requiring more social control than men.  Unfortunately, decisions like Roe were made without invoking equal protection, making the continued ignoring of it in regards to reproductive rights a strong possibility.