Eleanor Smeal dissembles on the upcoming Supreme Court battle

In an action alert email Friday, Feminist Majority president Eleanor Smeal is the latest anti-Bush figure to spread the myth that the upcoming Supreme Court nominee is going to overturn Roe v. Wade:

This is it! The worst has happened with the resignation of Sandra Day O'Connor. Let there be no mistake about it: Sandra Day O'Connor was the 5th vote that was saving Roe v. Wade. Abortion rights, access to birth control and women's rights are on the line. O'Connor was also the key vote for educational opportunities, Title IX, and affirmative action.

There's nothing worse than people saying "Let there be no mistake" and then making a mistake. As I already pointed out, five other justices currently on the court support the core finding of Roe. Smeal is wrong.

...Let there be no mistake about it. The case most likely to be reversed or pivotal in the coming Supreme Court nomination fights is Roe v. Wade. But even some of our progressive friends tend to marginalize the abortion issue. We must rally the millions of women and men who care if Roe is to be saved.

After the repetition of the phony "let there be no mistake about it" language, Smeal again suggests Roe will be reversed, saying that it is the case most likely to be "reversed or pivotal" in the "coming Supreme Court nomination fights" (though the "or" logically implies that Roe could be pivotal but not be reversed).

...We must build the machinery so the Court cannot be stacked against women for a generation. A filibuster of a presidential nomination only takes 41 Senators. There are more than enough pro-choice Senators to make the difference. No Senator can say she or he is for women's rights and then allow the Court to reverse a woman's fundamental right. We must make that very clear.

For a third time, Smeal suggests that the Court is going to reverse Roe. She also conflates a senator supporting a nominee with "allowing" the Court to reverse Roe. The Senate doesn't "allow" the Supreme Court to do anything. It's an independent branch of government! All the Senate does is approve Supreme Court nominees (though Congress can pass laws to reverse Supreme Court rulings on non-constitutional matters).

Between Smeal and Ralph Neas, my head already hurts. For some better perspective on the Court fight, see this Minneapolis Star-Tribune article by Eric Black, which does a good job of cutting through the hype.

Update 7/6: Here's a PDF (128K) of Smeal's full email.

Update 7/6: In comments, Xlrq draws out a point that I should have made more explicit -- namely, that Smeal appears to be citing O'Connor's role in Planned Parenthood v. Casey, where she was one of five justices upholding Roe. But Smeal's phrasing clearly implies that O'Connor was the fifth vote "that was saving" Roe up until her retirement. That is false because, as a reader pointed out in Josh Marshall's correction of this mistake, Byron White, who voted against Roe in Casey, was subsequently replaced by Ruth Bader Ginsberg, who supports Roe.

Comments

[Xrlq]

Smeal's statement that O'Connor "was the 5th vote that was saving Roe v. Wade" may be misleading in the extreme, but it is technically true. The last case in which there was any real chance of Roe being overturned was Planned Parenthood v. Casey a 5-4 case with O'Connor in the majority. Where Smeal accidentally-on-purpose errs is not in saying that O'Connor was the 5th vote that was saving Roe v. Wade, but in conveniently neglecting to mention that Byron White, who was replaced by Ruth Bader Ginsburg a year later, had been the 4th vote that was almost not-saving it.