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Archive for Sunday, January 26, 2003

Court’s makeup is key to future of abortion rights

January 26, 2003

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— The Roe v. Wade ruling that legalized abortion nationwide turned 30 last week, but its prospects for the future look none too secure.

Only five of the nine Supreme Court justices strongly support the abortion right, and two of them -- 82-year-old John Paul Stevens and 72-year-old Sandra Day O'Connor -- are likely to retire within a few years.

President Bush ran on a platform that promises he will appoint judges who "respect the sanctity of innocent human life."

And if Bush is re-elected, he almost surely will choose the successors for Stevens and O'Connor, as well as Chief Justice William H. Rehnquist.

The prospect alarms advocates for abortion rights.

"Roe is in grave peril," says Betsy Cavendish, legal director for NARAL Pro-Choice America, formerly known as National Abortion and Reproductive Rights Action League. "A switch in one vote (at the high court) could ban some abortion procedures and possibly ban second-trimester abortions. With a switch in two justices, Roe could be overturned entirely."

Justice Anthony M. Kennedy, a 66-year-old appointee of President Reagan, remains something of a question mark.

In 1989, he signed on to Rehnquist's opinion in a Missouri case that looked to be a precursor to overturning Roe v. Wade.

Two years later, the retirement of liberal Justice Thurgood Marshall and his replacement with conservative Justice Clarence Thomas gave lawyers for the first Bush administration good reason to believe they had a Supreme Court majority to overturn Roe.

But when the issue was tested in a Pennsylvania case, Kennedy switched sides and cast the crucial vote to preserve the basic right to abortion. The 5-4 majority said states could regulate abortion, but that women retained the right to choose abortion prior to the time when the fetus is "viable," which doctors have said occurs about the 23rd week of pregnancy.

That surprise ruling in 1992 came as a stunning setback for the anti-abortion movement. All five justices who voted to affirm the abortion right were Republican appointees. And the three authors of the court's main opinion -- Justices O'Connor, Kennedy and David H. Souter -- were Reagan or George H.W. Bush appointees.

A few months later, Democrat Bill Clinton was elected president, and he was committed to appointing justices who would support abortion rights.

In 1993, he chose Ruth Bader Ginsburg, a renowned women's rights advocate, to replace the retiring Justice Byron White, a conservative who wanted the Roe ruling overturned. And in 1994, when Justice Harry Blackmun, the author of the Roe opinion, retired, Clinton replaced him with Justice Stephen G. Breyer, a solid abortion-rights supporter.

Those moves formed a 6-3 majority in favor of abortion rights, with justices Rehnquist, Thomas and Antonin Scalia opposed.

But recently, the tide has begun flowing in the opposite direction.

Three years ago, Kennedy delivered an angry dissent when the court, on a 5-4 vote, struck down a Nebraska ban on a procedure that abortion foes labeled "partial-birth" abortion.

Most physicians consider this term inflammatory and misleading. It describes a procedure by which doctors, so as to prevent bleeding, remove a mid-term fetus intact, rather than in pieces.

Kennedy called these abortions "abhorrent" and accused O'Connor and Souter of having betrayed their 1992 joint opinion. Then, the three agreed that states could regulate the practice of abortion, but could not put "an undue burden" on women seeking to end their pregnancies. In the Nebraska case in June 2000, Kennedy said the ban on removing a mid-term fetus intact did not put an undue burden on women because other procedures were available. O'Connor and Souter said it did, because it forced these women to undergo more dangerous surgery.

These days, Kennedy is seen as likely to join a conservative majority that restricts the practice of abortion, but is unlikely to vote to overturn the right to abortion entirely.

That's why supporters of legal abortion say that replacing O'Connor or Stevens with a Bush appointee could restrict abortion rights, while replacing both of them could lead to overturning the right to choose.

"There's no question Roe will not survive a second Bush administration," says Nancy Northup, president of the New York-based Center for Reproductive Rights. "Right now, we confront the most dangerous situation we have faced. We have an anti-choice president, an anti-choice Senate, and the slimmest of majorities (at the court) in favor of Roe."

Lawyers for abortion opponents say they are optimistic that Roe v. Wade will be weakened but are not ready to predict it will be overturned. They remember the overly confident predictions from the late 1980s, when conservatives believed the abortion right was doomed.

"I don't take anything for granted. We still have a tremendous hurdle ahead," says Jay Alan Sekulow, chief counsel for the American Center for Law and Justice, which is based in Virginia Beach, Va. "It will take a significant shift for Roe to be put at risk."

Sekulow says he is confident that President Bush will appoint justices who share his conservative philosophy, but he noted that many conservatives are wary of overturning well-established legal precedents.

"On the other hand, I think more people are coming to realize that Roe is like Dred Scott. It's a fundamentally flawed decision that cannot stand," Sekulow said. He referred to the infamous 1857 ruling that said former slaves had no rights, even in the "free states" of the North. It took the Civil War to overturn the Dred Scott decision.

Catholic University Law Dean Douglas W. Kmiec also foresees more state restrictions on abortion, but not an overruling of the basic abortion right.

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