Future of abortion could be at issue

Roe V. Wade

The Retirement Of Sandra Day O'connor

July 02, 2005|By Stephanie Desmon | Stephanie Desmon,SUN STAFF

The surprise retirement of Supreme Court Justice Sandra Day O'Connor - considered a key vote in keeping abortion widely legal in the United States - throws into question the future of the procedure's availability and re-ignites a long-simmering and emotionally charged debate.

In losing O'Connor, the moderate voice who created the current legal standard that restrictions on abortion should not place an "undue burden" on women, the stage is set for someone cut from more conservative cloth to take her place.

Those on the front lines of the battle over abortion say her retirement has an even greater impact than would the resignation of the ailing Chief Justice William Rehnquist, an abortion opponent whose potential replacement would be an "even exchange," as one advocate said.

O'Connor's absence will be felt immediately. The court has already agreed to hear two abortion cases next fall.

"We're not talking theory. We're talking reality," said the Rev. Patrick J. Mahoney, director of the Washington-based Christian Defense Coalition. "By January of next year, decisions will come out of the court on abortion. ... Status quo in the Supreme Court has really gone out the window."

"It could change everything for women," said Wendy Royalty, a spokeswoman for Planned Parenthood of Maryland.

Advocacy groups sprang into action quickly yesterday.

Within minutes of the news that O'Connor would retire, NARAL Pro-Choice America's Web site had been transformed into a campaign headquarters for the fight ahead, asking visitors to donate money and write to their senators "to vote NO on anti-choice nominees!" News releases were flying; e-mails were sent by the thousands. The National Organization for Women planned an "emergency rally to save women's lives" in Nashville for this afternoon.

Anti-abortion groups were gearing up, too. Mahoney, for one, has already planned vigils, rallies and demonstrations outside the court building to coincide with the as-yet-unnamed nominee's confirmation hearing.

"Nobody's wasting any time getting on this," said Kathy Kleeman with the nonpartisan Center for American Women and Politics at Rutgers University. "This issue is going to be right in the middle of it."

It is unlikely, even with O'Connor's retirement and another, that Roe would be overturned - a majority of the remaining justices still favors letting the decision stand. Besides Rehnquist, only two other justices, Antonin Scalia and Clarence Thomas, have said Roe v. Wade should be overturned.

But even if the majority of the court is unwilling to completely reverse Roe, it doesn't mean that more limits won't be placed on it. The court with O'Connor has upheld waiting periods and parental notification provisions in the past. And a court without O'Connor is more likely to outlaw "partial-birth" abortions, an issue that is making its way through the courts again.

O'Connor, a Reagan appointee, was never really embraced by those on the right, who picketed her confirmation hearings. After Reagan left office, she made some of her crucial decisions on abortion.

In Planned Parenthood v. Casey, the 1992 case that largely reaffirmed abortion rights, O'Connor was one of those who wrote for the majority. In 2000, the last time the court took up a major abortion case, she was a member of the 5-4 majority that struck down a Nebraska ban on a late-term abortion procedure that opponents call "partial-birth," mainly because it did not make an exception for women's health.

Many on both sides of the abortion question say they want to know where a nominee stands on Roe v. Wade, the landmark 1973 case that effectively legalized abortion.

Those on the right feel they have been burned in the past by nominees - such as Justices Anthony M. Kennedy and David H. Souter - who turned out not to share some of the key views of the Republican presidents who nominated them.

Members of the religious right, who feel responsible for returning Bush to office for a second term, will not be satisfied by a nominee with soft or fuzzy credentials on abortion rights, observers said. Conservative blogs are already teeming with worries about putting Attorney General Alberto R. Gonzales, who they don't think is a big enough opponent of abortion, on the bench. Advocates for abortion rights will insist on someone who shares their desire to maintain the "right to choose."

"We should not have the senators playing Russian roulette, guessing where a nominee stands on critical constitutional protections," said Nancy Northup, president for the Center for Reproductive Rights, a legal advocacy group that argued against the "partial-birth" abortion ban before the court in 2000.

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