Opinion: Abortion doubletalk by Obama?

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Is Barack Obama talking out of both sides of his mouth on whether he will impose an abortion litmus test on his next Supreme Court nominee? Not completely.

This week Obama said that ‘I don’t have litmus tests around any of these issues,’ including abortion rights. ‘But I will say that I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights, and that is going to be something that is very important to me.’

In one sense, this is doubletalk. If (as the literary critics say) you unpack Obama’s reference to women’s rights, it’s obvious that he’s not going to pick someone he thinks might overturn or further cut back on Roe vs. Wade.

Note that Obama didn’t take refuge in the pro-choicers’ argument of convenience during the confirmation hearings of George W. Bush’s appointees -- that hewing to Roe was all about the importance of honoring precedent. The court’s 1992 decision in Planned Parenthood vs. Casey, which cut back somewhat on abortion rights, is also a precedent, and so is the Gonzales vs. Carhart, a 2007 ruling upholding a federal ban on ‘partial-birth’ abortion. I think it’s safe to say that Obama wouldn’t mind appointing a justice willing to overrule those decisions.

So if that’s the case, why say there’s no litmus test, except to abide by François de la Rochefoucauld’s maxim that hypocrisy is the homage that vice pays to virtue?

I read Obama as saying that he won’t ask a prospective nominee whether she would reaffirm Roe, a question that comes very close to exacting a commitment from potential judge about how she would vote on a specific issue. That is more ethically troublesome than acting on an informed intuition that a nominee is likely to vote a particular way. I don’t think it’s a distinction without a difference.

-- Michael McGough