It is theoretically possible that the Court will admit that its decision in Roe to deny preborn personhood on the basis of an argument from silence was a major blunder, and therefore find in the Fourteenth Amendment a right to life for the preborn.
I repeat: theoretically. Realistically, that is likely too great a shift for the Court to stomach; a more likely outcome of Roe being overturned would be the issue devolving back to the states for regulation.
Now, admittedly, I wouldn't want to try and win over the public with a case as flimsy as that of the pro-choice movement if I could avoid it. But look at the playing field. Today, the pro-choice movement has:
- Over thirty years of unfettered abortion rights (extending the full nine months of pregnancy, once Doe v. Bolton's expanded definition of "health" is taken into account) as the status quo.
- Largely sympathetic media coverage that entire period, as well as before.
- The support of the academic and medical establishments.
- For the first time ever, a potential benefit for the uninvolved public, in the form of embryonic stem cell research.
...Maybe that's the point.
