November 21, 2004|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF
To prepare for a possible Supreme Court vacancy, and the fierce political fight over abortion that is sure to follow, the abortion rights group NARAL Pro-Choice America taped and has ready to run a 30-second television commercial, warning what could happen if Roe v. Wade is overturned.
Other activists aren't waiting that long. Anti-abortion groups over the past two weeks waged broad protests, with a barrage of e-mail and faxes, and a pray-in near the Capitol, to try to stop Sen. Arlen Specter from leading the Senate Judiciary Committee after he described the 1973 ruling that legalized abortion as "inviolate."
Speculation about the paired futures of the court and abortion rights is approaching a fever pitch, prompted by the prominent role of religious conservatives in President Bush's re-election and the cancer diagnosis of Chief Justice William H. Rehnquist. But the heated rhetoric masks a critical point, legal observers say - the unlikelihood that Roe v. Wade will be reversed.
"Despite all the post-election moaning and wailing, I don't think anything has changed," said David J. Garrow, a Supreme Court historian at Emory University and author of Liberty & Sexuality: The Right to Privacy and the Making of Roe v. Wade.
That assessment is shared widely by legal scholars and acknowledged by some activists, who say legislative battles - such as the move in Congress late last week to add an anti-abortion provision to a must-pass spending bill - are more likely. The slim chance of Supreme Court overturning Roe v. Wade reflects, they say, political and legal realities as well as simple math.
By itself, a Rehnquist departure would not change the math surrounding abortion and the nine-member court. The chief justice has long opposed abortion (he was one of two dissenting votes in Roe v. Wade and is the only justice from that time still on the bench), and any replacement nominated by President Bush is likely to as well.
Besides Rehnquist, two other justices, Antonin Scalia and Clarence Thomas, have said Roe v. Wade should be overturned.
But even if over the next four years the president could replace two others - Sandra Day O'Connor, 74, who has been a swing vote on abortion, and liberal John Paul Stevens, 84, are mentioned most often - it would not guarantee a five-person majority on abortion cases. To reverse Roe v. Wade, all of the new justices would have to be willing to reject the court's honored doctrine of stare decisis, Latin for "let the decision stand," which was a central theme in a 1992 decision affirming abortion rights.
"If you think about getting Roe overturned, replacing Rehnquist can't accomplish that," said Neal Devins, a law professor at the College of William & Mary. "You would need not just Rehnquist to step down, but you would also need two others, and - just as a statistical matter - it is unlikely that the president would end up appointing three people, all of whom were willing to overturn Roe."
Republicans split
It is unlikely as a political matter, as well, said Yale University law professor Jack M. Balkin, who studies constitutional law and abortion policy.
While much attention has been paid to the role of social conservatives in helping President Bush win re-election, that group is only one segment of the Republican Party's coalition, Balkin said. A poll released early this year by the Pew Research Center showed the GOP almost split on abortion rights, with 50 percent of Republicans favoring stricter abortion laws and 44 percent opposed. Democrats were more unified on the question, with 25 percent of Democrats favoring stricter laws and 70 percent opposed.
"If the issue of criminalizing Roe is on the table, then the coalition falls apart," Balkin said. The Republican Party, he said, "can't afford to overturn Roe."
`Perfect storm'
Abortion rights activists disagree. They say a combination of Supreme Court vacancies and legal challenges expected to work their way through the federal courts in the next few years could create a "perfect storm" that upends Roe v. Wade.
"That's a pretty faith-based argument," David E. Seldin, communications director for NARAL Pro-Choice America, said to counter assertions that the 1973 decision is secure. "It assumes that the Republicans don't mean what they say."
Seldin pointed to remarks last week by White House press secretary Scott McClellan, who, asked at a news briefing about the president's position on overturning Roe v. Wade, responded: "There's not enough support in Congress to ... get it done at this point, has been the president's view, but that we should work toward that goal."
Abortion rights activists are also focused on a Michigan law, which includes untested language defining birth as the moment any part of a fetus is outside a woman's body and shows signs of life. The law is expected to face a legal challenge when it takes effect in March, but if upheld, it could effectively reverse Roe v. Wade, Seldin said.
