The Next Litmus Test

As I've said before, Health Care Reform will be the new litmus test for anyone Obama nominates for SCOTUS.  Republicans will be brutal until they get assurances that Obama's Supreme Court pick will be the fifth vote against it.  Michael Barone brings it up again today but adds an argument I find interesting:

Some 14 state attorneys general are trying to raise the issue in court, and pending state laws outlawing mandates could raise the question, as well. Those state laws are obviously invalid under the supremacy clause unless the federal law is unconstitutional. Is it?

I would expect an Obama nominee to decline to answer. But Republicans may not take such a response as meekly as they did when Ginsberg declined to answer dozens of questions back in 1993. They might press harder, as they did in 2009 when they prompted Sotomayor to declare, to the dismay of some liberal law professors, that she would only interpret the Constitution and the law, not make new law. Just raising the health care mandate issue helps Republicans given the great and apparently growing unpopularity of the Democrats' legislation.

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."

And that's a hell of an argument in the court of public opinion:  Roe v. Wade means that Obamacare should be struck down.  You're telling me that after all this time, conservatives are defending Roe to argue that health care reform is unconstitutional?  They're willing to give up opposition to Roe (and the contraception precedent in Griswold v Connecticut) just to get rid of this bill?

That's astounding.  Even if you don't buy the legal argument (which I don't) the fact that conservatives are willing to go there is a bit of a gobsmacker.  Opposition to Roe is the basis for modern social conservatism, frankly.  It has been for my entire lifetime, and yet here we have at least one argument for Roe used as a tool to get rid of health care reform.

The priority matrix has clearly shifted here.  Keep an eye on the response to this argument that Roe's precedence means health care reform must be overturned.  It's a specious argument at best (mandating health insurance is not mandating government health care interference any more than mandating car insurance means the government controls what car you buy) but the shift that giving up Roe to stop health care reform shows just how much of a threat this is to conservatives.

Watch the response to this idea closely.