Jeffrey Toobin: The Real Lesson of Roe v. Wade: The New Yorker Before Harry Blackmun became a federal judge, and then a Supreme Court Justice, he was the general counsel at the Mayo Clinic, the celebrated medical center in Minnesota. There he developed a reverence for doctors, which was reflected in his judicial opinions, especially in Roe v. Wade. In that decision, which was handed down forty years ago this week, the Court ruled that states must allow a woman to obtain an abortion during the first trimester of a pregnancy. According to Blackmun's majority opinion, the ruling fell under the right to privacy that is implicit in the Constitution. In keeping with his predilection for his former colleagues, he emphasized the rights not of women but of doctors: "The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated." The word "physician" appears in Roe v. Wade forty-eight times, the word "woman" forty-four times. As the Court returned to the subject of abortion in subsequent decades, the rationale for its decisions shifted. In the 1992 case of Planned Parenthood v. Casey, the court reaffirmed Roe in an opinion written jointly by Sandra Day O'Connor, Anthony Kennedy, and David Souter. That decision focussed on the provision of the Fourteenth Amendment which says that no state shall "deprive any person of life, liberty, or property, without due process of law." The Justices said that a woman's decision to terminate a pregnancy was within the "realm of personal liberty which the government may not enter." More recently, in a dissenting opinion, Ruth Bader Ginsburg, joined by three other Justices, offered still another constitutional justification for a woman's right to choose, under a different part of the Fourteenth Amendment: the equal-protection clause. Undue restrictions on the right to abortion, Ginsburg wrote, violate "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature." This sort of evolution is not unusual in the history of the Supreme Court. Some Justices like to assert, or pretend, that the Constitution has a single meaning, and that each case thus has only one correct resolution. This view is especially pronounced among conservatives, who, in recent years, have claimed that they can identify the original intent of the framers and use their eighteenth-century wisdom to resolve any modern controversy. But, of course, interpretations of the Constitution have changed over time: legal theories pass in and out of fashion, and, most important, Presidents can and do change the understanding of the Constitution by naming new Justices to the bench. There have been twelve since 1973. That is the real lesson of abortion rights in the Supreme Court. Politicians, especially Presidents, lead. Judges, even Justices, follow. Ronald Reagan nominally opposed abortion rights, but he never invested much energy in the cause. Two of his appointees (William Rehnquist, as Chief Justice, and Antonin Scalia) opposed Roe; two (O'Connor and Kennedy) supported it. George H. W. Bush had a similar record: one appointee against Roe (Clarence Thomas), and one in favor (Souter). Roe has survived since then because Democratic Presidential candidates have understood that they needed to support abortion rights in order to win their party's nomination, and the four current Democratic appointees on the Court (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) have voted and will vote accordingly. These four plus Kennedy assure Roe's survival, for now. What has changed since 1973 - and even since the Presidencies of Reagan and Bush I - is that opposition to Roe has become a core value of the Republican Party. To win the Republican nomination in 2012, Mitt Romney, the formerly pro-choice governor of Massachusetts, conducted a demeaning about-face on abortion. He had no choice. Lip service isn't good enough for the Party faithful now; they want Justices. And they would have got them if Romney had won and seats had become vacant. It's tempting to be outraged by the close correlation between the outcome of Presidential elections and the outcome of cases before the Supreme Court. Aren't Justices supposed to be independent of politics - isn't that one reason they have life tenure? Aren't judges different from politicians? Not really, and that's nobody's fault; when it comes to interpreting the majestic generalities of the Constitution, there is no such thing as apolitical decision-making. So, in a time of great polarization between the parties, Democratic and Republican judicial appointees see the world, and the law, in very different ways. It's true that Justices do surprise and exceptions do happen. But not often. That goes for more than just abortion. This term, the Supreme Court has before it major cases on affirmative action and gay rights; the difference between the current political status of these two causes suggests how the Justices may resolve them. In a case involving the University of Texas, the Justices are weighing the future of racial preferences in college admissions. Like Ronald Reagan on the anti-abortion cause, Barack Obama offers dutiful, if not nominal, support for affirmative action. Certainly, he has not invested much political capital in the traditional civil-rights agenda, nor have many other national Democratic figures. The fight for racial preferences has little of the moral grandeur - and none of the political appeal - of the early civil-rights fights. The Democrats" apathy, combined with the energetic hostility of the political and legal establishment of the Republican Party, appears likely to doom affirmative action in Texas and, perhaps, everywhere else. The cause of gay rights, in contrast, is ascendant, with the President now its outspoken champion. This is the essential backdrop to the Court's consideration of the constitutionality of the Defense of Marriage Act and California's Proposition 8. As it happens, Justice Kennedy is a strong supporter of both gay rights and states" rights, positions that offer promising auguries about how he will vote on DOMA. The law forbids the federal government to recognize same-sex marriages, even in states where they are legal. The prospects for the Prop 8 case, which could give rise to a constitutional right to marriage equality, are cloudier; the Justices have several procedural options that would allow them to duck a straight up-or-down vote. But there is no question that prospects for gay rights in the Supreme Court are considerably better than they were just a few years ago. That's not because the Constitution has been changed but because the people, and the President they elected, have. On the fortieth anniversary of Roe v. Wade, it is worthwhile to celebrate a landmark of what is, in the truest sense, women's liberation. But it's important to remember, too, that it wasn't the Supreme Court Justices alone who made sure that Roe survived. The judicial texts have evolved from odes to doctors to paeans to liberty and to defenses of equality. But it is the voters and the President they elect who will decide whether abortion rights survive for the next four decades. ♦