Enter abortion, court as issues

July 05, 2000|By Jack W. Germond and Jules Witcover

WASHINGTON - Every four years political professionals talk about whether the Supreme Court may become a cutting issue in the presidential election. This year it may happen.

The 5-4 split in the court on the Nebraska abortion case comes at just the right time to call attention to how easily Roe vs. Wade might be overturned. And that, in turn, is certain to energize both the advocates and opponents of abortion rights. The vote was, in short, a valuable fund-raising tool for those who give a high priority to the issue.

In previous elections it has been difficult, if not impossible, to find any evidence of the Supreme Court as a factor. In a presidential election, most Americans cast their ballot for the man they want to be president of the United States. Very few make two-step decisions and vote for a candidate on the chance he will be in a position to change the makeup of the court.

The result is that the Supreme Court ranks far down on lists of voter concerns. The only exceptions have been some older black voters who remember the role of the court in their lives because they remember Brown vs. Board of Education in 1954, the decision that outlawed segregated schools.

The abortion question does not have the same kind of priority with most Americans, of course. Opinion surveys in the past have shown about 15 percent of the voters willing to say they have made their decisions primarily because they are pro-choice or pro-life. And they have divided roughly even.

There are some different factors at play this year, however. The first is the lack of great national concerns in the electorate. The economy is booming and there is no international threat on the horizon. Americans are free to concern themselves with the conditions of their children's schools or the environment or their health care.

More to the point, however, there is the distinct possibility that the next president could transform the high court over the next four to eight years. Because of the age or infirmity of some of those who sit on the court today, the prospect is realistic.

As President Clinton put it at his news conference the other day, "I think that in the next four years there'll be somewhere between two and four appointments to the Supreme Court and, depending on who those appointees are, I think the rule (Roe vs. Wade) will either be maintained or overturned, and I think that's very much in the balance."

In fact, even if Roe vs. Wade is not jeopardized, the makeup of the court could be significant in determining which state restrictions on abortion are acceptable and which, like the Nebraska law on so-called partial birth abortions, are not.

It is foolish to predict with any certainty how justices will vote. But it is reasonable to speculate, for example, that if the last two appointments to the court had been made by a conservative Republican president, they might not have voted on the Nebraska case as did Clinton appointees Ruth Bader Ginsburg and Stephen G. Breyer.

The prospect of the abortion-Supreme Court issue gaining greater prominence is probably better news for Vice President Al Gore than for his Republican opponent, Gov. George W. Bush of Texas.

Analyses of previous elections have found more independents and moderate Republicans willing to vote Democratic because of their pro-choice position than conservative Democrats voting Republican because they are pro-life. It is likely, nonetheless, that right-to-life groups will make heightened efforts, particularly among Roman Catholics, to attract those potentially disgruntled Democrats.

But Mr. Bush is in an awkward position politically. He has said he won't rewrite the Republican platform plank calling for a prohibition against all abortions. But he also has said he won't rule out a pro-choice Republican as a running mate. In other words, he has made it clear that the abortion issue is not at the head of his agenda.

And he clearly is hoping to get through the Republican convention now less than a month away without having to placate the extremists on the issue by making opposition to abortion rights a litmus test for his appointees to the court, something he has refused to do until now.

The close vote in the Nebraska case may make that more difficult.

Jack W. Germond and Jules Witcover write from The Sun's Washington Bureau. Mr. Germond's latest book is "Fat Man in a Middle Seat - 40 Years of Covering Politics" (Random House, 1999). Mr. Witcover's latest book is "No Way to Pick a President" (Farrar Straus & Giroux, 1999).

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