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This time, Roe vs. Wade really could hang in the balance
The Supreme Court's onetime wide majority in favor of
abortion rights has shrunk to one: Justice John Paul Stevens, who is 88. Now the
decision's fate may depend on who becomes the next president.
abortion rights has shrunk to one: Justice John Paul Stevens, who is 88. Now the
decision's fate may depend on who becomes the next president.
By David G.
Savage
Los Angeles Times Staff Writer
October 5,
2008
WASHINGTON — Every four years, defenders of abortion rights proclaim
that the fate of Roe vs. Wade hangs on the outcome of the presidential
election.
This year, they may be right.
Through most of the 1990s
and until recently, the Supreme Court had a solid 6-3 majority in favor of
upholding the right of a woman to choose abortion. But the margin has shrunk to
one, now that Justice Sandra Day O'Connor is retired and has been replaced by
Justice Samuel A. Alito Jr.
And Justice John Paul Stevens, a leader of
the narrow majority for abortion rights, is 88.
"Clearly, Roe is on the
line this time," said Indiana University law professor Dawn Johnsen, a former
lawyer for NARAL Pro-Choice America. "It is quite clear they have four votes
against it. If the next president appoints one more, the odds are it will be
overruled."
Some advocates worry that the perennial cries of "Roe is
falling" has had the effect of muting such claims.
"What we find scary is
that people don't understand what's at stake," said Kathryn Kolbert, president
of People for the American Way. "In the next four years, one to as many as three
Supreme Court justices may step down, and they all will come from the liberal
end of the court."
But that doesn't mean abortion or the fate of the Roe
decision is a rallying cry on the campaign trail for either Democrats or
Republicans. The two parties have staked out opposite positions, but their
candidates rarely mention them when campaigning.
The abortion issue is
enormously important to the base of both parties, political strategists say, but
it is a touchy and difficult matter to raise with an audience of swing voters
and those who are undecided.
"People are conflicted about it," said Peter
Fenn, a veteran Democratic strategist. "If you are campaigning in Scranton, you
want to make the lunch-bucket argument. When the economy is driving the race,
you don't want to ignite the culture wars."
On the Republican side,
Kenneth L. Khachigian, a California attorney and a campaign advisor to President
Reagan, said abortion had become a key issue in the primary races but not in the
general election.
"It is a motivating factor at the grass-roots level,"
he said.
When Republican John McCain was considering his choices for a
running mate, conservative activists threatened a rebellion at the GOP
convention in St. Paul, Minn., if he were to choose a supporter of abortion
rights.
Instead, McCain galvanized his support with conservative
activists when he chose Alaska Gov. Sarah Palin, who opposes abortion even in
cases of rape and incest.
McCain's website says he "believes Roe v. Wade
is a flawed decision that must be overturned."
But having established his
opposition to abortion, McCain has no reason to campaign on the issue,
Khachigian said. "At this stage, when you focus on the 10% who are out there and
have not decided, you can figure they are not going to decide based on your view
of abortion or Roe vs. Wade," he said.
Democrat Barack Obama has called
himself a strong supporter of abortion rights.
"A woman's ability to
decide how many children to have and when, without interference from the
government, is one of the most fundamental rights we possess," he told NARAL
Pro-Choice America. "I believe we must work together to reduce the number of
unintended pregnancies," he said.
But Obama, like McCain, does not talk
up the issue on the campaign trail.
Polls show the American public
remains closely split on abortion. Most say they favor legal abortion, with some
restrictions. In August, a poll for the Pew Research Center for the People &
the Press found that 54% said abortion should be generally legal, and 41% said
it should be mostly illegal.
This week, the Supreme Court opens its term,
and abortion is not on the docket there, either. The justices have generally
steered away from abortion-related disputes in recent years. They remain closely
and bitterly divided on the issue.
Four justices -- Ruth Bader Ginsburg,
David H. Souter, Stephen G. Breyer and Stevens -- have consistently supported
the right to abortion, and they have voted to strike down
restrictions.
Justices Antonin Scalia and Clarence Thomas have said the
Roe decision should be overturned, leaving the states or Congress to decide the
abortion issue.
Chief Justice John G. Roberts Jr. and Alito served as
young lawyers in the Reagan administration, which was committed to reversing
Roe. And since joining the court, they voted to uphold the federal Partial-Birth
Abortion Ban Act.
In the middle, Justice Anthony M. Kennedy has supported
strict regulation of abortion, but he has opposed a ban.
If Stevens or
Ginsburg were to be replaced by a staunch conservative, that would tip the
majority against abortion rights. However, it is not certain that Roberts and
Alito would join Scalia and Thomas in pressing to overrule the right
entirely.
Some conservative lawyers agree that a McCain victory would
only set the stage for overruling Roe. Regardless of who wins the White House,
Democrats are likely to maintain a majority in the Senate, and they could block
a staunchly conservative nominee to the high court.
"I think the
consensus is Roe will fall slowly and incrementally, not in one decision," says
Wendy Long, a former Thomas clerk and counsel to the Judicial Confirmation
Network. "And the day after Roe is reversed, abortion still will not be
illegal," she said, since many states would not outlaw it.
M. Edward
Whelan, a former Scalia clerk and president of the Ethics and Public Policy
Center, believes it would take more than one new justice to cause a dramatic
shift in abortion law.
"I would say if we get a President McCain and he
gets several appointments, there is a prospect of overturning Roe vs. Wade and
returning abortion policy to the democratic process," he said.
Fenn, the
Democratic strategist, said that prospect should be enough to energize
supporters of abortion rights.
"If you are pro-choice," he said, "the
stakes are pretty obvious."
david.savage@latimes.com