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Saturday, Jan. 20, 2001

As they do every year, the participants in the March for Life will be protesting the 1973 decision Roe vs. Wade, the Supreme Court ruling that invented a right to an abortion.

Each year, the marchers have expressed their frustration with a Supreme Court majority, a Congress, a president or an attorney general who could not recognize what they felt was obvious: that abortion is murder. But this year, their mood could be somewhat different.

This year, their ultimate goal might seem less unattainable.

For the first time since 1973, all the pieces are at last falling into place for opponents of abortion. President-elect Bush and Congress, with both chambers narrowly controlled by Republicans, are at least nominally anti-abortion.

Former Sen. John Ashcroft, R-Mo., likely will be confirmed by the Senate as attorney general – despite rough handling from Democrats during confirmation – and will bring his anti-abortion views to the Justice Department. Any solicitor general serving under Ashcroft would be highly unlikely to argue in any court for the constitutionality of abortion.

In fact, Ashcroft is pledged to enforce federal laws and court rulings allowing abortion, but would be under no compunction to support that right in any court challenge to it. He did not promise to do so during his confirmation hearings.

Most fortunate of all, from the protesters' point of view, is that the most likely member of the Supreme Court to step down during Bush's administration is Justice Sandra Day O'Connor.

Justice O'Connor's Role

In 2001, abortion is hanging by a thread, and O'Connor holds it.

Though she is considered a moderate conservative, O'Connor was the author of the most important portions of 1992's Planned Parenthood vs. Casey, which until last year was the Supreme Court's main reaffirmation of 1973's Roe vs. Wade.

Last June, she wrote the majority opinion in Stenberg vs. Carhart, which again reaffirmed Roe's central holding and struck down Nebraska's ban against partial-birth abortions.

The ruling affected similar bans in 29 other states and any prospective federal ban enacted by Congress. President Clinton twice vetoed congressional legislation designed to prohibit partial-birth abortion.

The Supreme Court majority in Stenberg was razor-thin, however, at 5-4. Significantly, moderate Justice Anthony Kennedy, a Catholic who joined O'Connor in 1992's Planned Parenthood, defected to the minority in Stenberg.

O'Connor and the rest of the Stenberg majority, consisting of the Supreme Court's four liberals, accepted the argument from challengers of the Nebraska ban that it was a thinly disguised attempt to outlaw most forms of abortion.

Nebraska's ban, like the bans in the other states and the attempted federal ban, did not deal with late-term abortions, but instead sought to prohibit all abortions in which part of a fetus was broken up outside the womb at any stage in a pregnancy.

The physician who challenged the Nebraska ban, Dr. LeRoy Carhart, told the Supreme Court in a brief that breaking up the fetus completely inside the uterus was something that no gynecologist would purposely do, no matter how early in a pregnancy, because it might endanger a woman's health and her fertility.

So at least for the Supreme Court majority, the ruling to strike down the Nebraska ban at the same time preserved the central core of Roe – but only by one vote.

And at 70, O'Connor is believed to be at least considering stepping down. She has told friends that there is indeed more to life than a seat on the Supreme Court. Her husband, John Jay O'Connor III, has repeatedly expressed a desire to return to Arizona.

Any O'Connor replacement – or a replacement for any of the Stenberg majority – would control how the Supreme Court rules on the constitutionality of most restrictions on abortion.

Someone Like Scalia

Bush has said that if he gets a chance to name someone to the high court, he would select a jurist much like Justice Antonin Scalia, perhaps the Supreme Court's most conservative member and a bitter foe of abortion.

The president-elect has also repeatedly said he would sign a federal ban against partial-birth abortion if Congress enacts yet another piece of legislation.

The Senate, which must confirm any Bush nominee for the Supreme Court, is split 50-50 between Democrats and Republicans, but any tie vote would be broken by Vice President Dick Cheney. Though they would lose any party-line vote, Democrats might be able to filibuster and block at least two of Bush's initial choices – at least 60 votes are needed to break a filibuster or its modern equivalent – but would find it politically difficult to block a third, especially if that third candidate is a quiet but committed foe of abortion.

As long as he has backup choices for the Supreme Court, choices who agree with him on abortion and other matters, Bush would be in an excellent position to demonstrate that elections do matter.

See more articles on abortion.

Copyright 2001 by United Press International. All rights reserved.

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