President needs to show his nerve, allow abortion issue to guide choice

July 11, 2005|By Steve Chapman

CHICAGO - George W. Bush has succeeded through his reputation as a straight talker who doesn't shrink from a fight, regardless of the political consequences. When he chooses a successor for Supreme Court Justice Sandra Day O'Connor, we'll find out if the reputation is warranted.

The central issue hanging over the court for the last 32 years has been abortion. When conservatives talk about the imperial judiciary or judges who legislate social policy from the bench, they're thinking first and last of the court's 1973 decision in Roe v. Wade - which gave constitutional protection to abortion rights. So the crucial question here is: Does President Bush have the nerve to appoint a justice who will overturn that decision?

The president has always said he would not make abortion a litmus test for his judicial appointees. But he has done so while dropping clear hints to the pro-life movement that if he had his way, Roe would be as defunct as the Articles of Confederation.

Mr. Bush has expressed admiration for Justices Antonin Scalia and Clarence Thomas - both of whom have taken the unequivocal position that "Roe was wrongly decided and that it can and should be overruled." Appointing a justice who would resemble them, but who would also vote to uphold Roe, would be the equivalent of finding a clam with legs.

Certainly Mr. Bush has many supporters who want him to keep abortion in mind when he makes his selection. Of the voters who defined themselves as "pro-life" in November, 77 percent voted for Mr. Bush. A CBS News/New York Times poll last year found that 64 percent of Americans said they think he will appoint Supreme Court justices who would repeal abortion rights. Conservative groups have vowed to permit "no more Souters" - referring to David H. Souter, the supposedly conservative justice named by George H.W. Bush, who ultimately helped to preserve Roe.

Anti-abortion groups have every reason to insist that Mr. Bush finally do something major for their cause. They helped propel him to the nomination in 2000, but until now, they've gotten meager returns.

On this issue, Mr. Bush is a master of prudent evasion. He can rarely bring himself to utter the word "abortion," preferring that soft-focus term "the culture of life."

So filling the O'Connor vacancy is put-up-or-shut-up time for the president. A change of one vote on the court wouldn't doom Roe, since only three of the remaining justices have voted to scrap it. But it could swing the court in favor of allowing a ban on partial-birth abortion. And it is crucial to any hopes of eventually turning the court around on this issue.

The president can't demand a public commitment from a nominee on any particular case. But he certainly should look for a candidate who has left no doubt that Roe was a grave mistake.

Getting rid of Roe would have two valuable consequences. First, it would restore the constitutional right to privacy to a reasonable, defensible scope. Second, it would return the issue of abortion to where it belongs - with democratically elected lawmakers.

People often forget that overturning Roe would not outlaw a single abortion. All it would do is allow Congress and the states to decide how to regulate it.

Democrats are bound to vote against a justice who would turn abortion over to democratic bodies. But in political terms, the reversal might be the best thing that could happen to them. Currently, they are at a disadvantage in the abortion debate because the basic right is not in jeopardy. So Republicans can support modest restrictions without setting off too many alarm bells, while portraying Democrats as extremists for objecting.

Without Roe, the focus would be on whether to maintain the basic right to abortion, as most Democrats prefer, or to ban most abortions, in accordance with the GOP platform.

It was a mistake from the start for the Supreme Court to pre-empt the democratic process by resolving a divisive issue on which the Constitution is utterly silent.

Now the president has a chance to move the court back to where it should have been all along. Bring on the litmus test.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing company. His column appears Mondays and Wednesdays in The Sun.

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