Jeffrey Rosen asks whether the Supreme Court might find the Stupak Amendment unconstitutional.

But first: Caption contest. This is the picture TNR uses to illustrate Rosen's article. May I draw special attention to Scalia's left-hand gesture?

Now, here's the serious part:

Let’s imagine that it’s impossible to pass a health care bill without a version of the Stupak amendment. Might the Supreme Court strike the amendment down? In upholding the Hyde amendment in 1980, the Court stressed that Congress could refuse to subsidize medically necessary abortions because it left “an indigent woman with at least the same range of choice … as she would have had if Congress had chosen to subsidize no health care costs at all.” By contrast, the Stupak amendment doesn’t leave self-employed women who receive federal subsidies with the same range of choice: It makes it much harder for them to find alternative coverage for abortion and therefore, in practice, leaves the federal government less neutral toward abortion than even the Hyde amendment. For this reason, it’s possible that some liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution. But this argument is unlikely to convince a majority of the Roberts Court, which means that pro-choice Democrats shouldn’t count on the Court to bail them out.

I think Rosen is right. The answer depends largely on who's on the Supreme Court. "[S]ome liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution," and the question, then is: How many liberal Justices will be on the Court when the question comes up? We'll call it "the Roberts Court" as long as John Roberts is Chief Justice, but the current balance of liberals and conservatives, plainly, is open to...

... change.