Future of abortion uncertain - Chicago Tribune

Future of abortion uncertain
With Supreme Court vacancy, activists on both sides mobilize
By Judy Peres
Tribune staff reporter - Chicago Tribune

July 5, 2005

With the future of abortion law hanging on the next few Supreme Court appointments, the resignation of Justice Sandra Day O'Connor has pushed activists on both sides of the national divide into high gear.

"Abortion rights and women's rights are on the line," said a mass fundraising e-mail sent out by the Feminist Majority over the weekend, while the liberal lobby MoveOn.org said it aimed to deliver 250,000 signatures by Tuesday on an emergency petition asking U.S. senators to help preserve the right to terminate a pregnancy.

At the same time, the Family Research Council, a conservative Christian group, said it would mobilize 20,000 churches across the country in an attempt to change the direction of the court. Another conservative group called Progress for America launched an $18 million advertising campaign in support of new justices who would overturn rulings it opposes. Chief among those is Roe vs. Wade, the 1973 decision that established a constitutional right to abortion.

With the better part of four years left in George W. Bush's presidency, and the possible replacement of several justices in that time, abortion foes hope--and abortion-rights advocates fear--that Bush will change the court's balance.

A more conservative court might well vote to overturn Roe, abortion-rights and civil-liberties groups have warned. Abortions then would quickly become illegal in some states, they say, and Congress would be free to pass a federal law banning the procedure in every state.

But it is far more likely, observers say, that opponents will continue to whittle away at the edges, restricting access to abortion where they can.

In order to overturn Roe, legal and political experts say, at least two solidly anti-abortion justices would have to be nominated and confirmed. Then the right case would have to come along. Even then, experts say, Supreme Court justices with lifetime appointments do not always vote as expected. Also, justices in general are reluctant to overturn well-established law.

"What are the chances of [overturning Roe] in the next four years?" asked Bill Beckman, executive director of the Illinois Right to Life Committee. "It's a possibility, but it's not certain by any means."

Beckman said the court in its current composition has only three sure votes to overturn Roe--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas. Rehnquist, 80, who was diagnosed with thyroid cancer late last year, also is expected by many to retire in the near future. But his replacement likely would not change the voting lineup.

"We'd need to replace two others in order to replace the 6-3 pro-abortion majority with a 5-4 pro-life majority," Beckman said. O'Connor's resignation gives Bush the chance to move in that direction, he added.

Activists on the other side say the current majority supporting the right to an abortion is a slim 5-4 in some cases, because Justice Anthony Kennedy has been a swing vote. But even they concede that Bush would need a third appointment in addition to O'Connor and Rehnquist to reverse Roe altogether.

O'Connor has been one of the five sure votes in favor of Roe. The others are those of Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens.

Doing the math

"If two of those are replaced--or if Kennedy is replaced along with one of the five--you could have a flip on Roe," said Nancy Northup, president of the Center for Reproductive Rights. But Bush "has to replace only one of them with an anti-choice justice to tip the majority toward upholding much more restrictive regulation on abortion."

For example, when the Supreme Court struck down Nebraska's ban on "partial-birth abortion" in 2000, the vote was 5-4. Without O'Connor, such bans could be upheld in the future.

To forestall that, NARAL Pro-Choice America, one of the leading abortion-rights groups, is mobilizing the 800,000 members of its "Choice Action Network." The group's 30,000 "rapid responders" sprang into action over the weekend to organize efforts including telephone and letter-writing campaigns to the Senate and the news media.

The liberal People for the American Way sent out 1 million communications last week warning that the high court would turn back 40 years of constitutional law--including Roe and the right to use birth control--if Bush succeeds in appointing more justices like Scalia and Thomas.

The other side also has launched a huge public relations and advertising effort, including television and radio spots, rallies, news conferences and mass mailings.

Focus on the Family, a conservative Christian group, said it recently sent out an "action letter" to about 1.2 million supporters, asking them to help get conservative justices appointed to the Supreme Court.

A spokesman said the group also planned to run newspaper and radio ads in select states urging people to contact their senators.

Whether or not Roe is overturned, advocates on both sides of the issue believe federal and state lawmakers will keep trying to limit access to abortion where they can.

Roe vs. Wade, which has been affirmed several times since it was handed down 32 years ago, said states may not prohibit a woman from getting an abortion in the first two trimesters of her pregnancy. Even in the third trimester, when the fetus is assumed to be viable outside the mother's body, abortion may not be banned if the woman's life or health is at risk.

Legislative attempts to ban specific abortion procedures, such as one opponents call "partial-birth abortion," have been ruled unconstitutional because they violate the principles in Roe. Likewise, some restrictions--notably spousal consent for married women--have been struck down as overly burdensome. But others have been allowed to stand, and lawmakers continue to expand on those restrictions.

Abortion right eroded

Colleen Connell, executive director of the American Civil Liberties Union of Illinois, said reproductive freedom can be curtailed without overturning Roe. That freedom "has been eroded in substantial ways since Roe and [despite] its many affirmations," she said.

The 1976 Hyde Amendment eliminated federal Medicaid reimbursement for elective abortions. Most states (but not Illinois) require parental consent or notification in a minor's abortion decision. Many have mandatory waiting periods and state-scripted counseling. And, outside large cities, access is a major problem: Nearly 90 percent of U.S. counties do not have an abortion provider.

"All of those combine to make it more difficult" for women, especially young and low-income women, to get an abortion, Connell said.

Not everyone is convinced Bush really wants to overturn Roe.

"The Republican Party is an unstable coalition," said Andrew Koppelman, professor of law and political science at Northwestern University. "It includes both the religious right and people who are not at all religious but are interested in keeping themselves prosperous and their taxes low. If you tell those people they or their daughters can't get abortions if they get pregnant, they're likely to start thinking about voting Democratic.

"If Roe were reversed," he added, "every Republican at every level of government would have to decide if they want to act to criminalize abortion. Whatever you do will disgust one large group of your supporters."

Koppelman noted, "There would be real political costs to appointing . . . a real right-to-life firebrand to replace anyone other than Rehnquist."

But some political observers think Bush will appoint an individual who is acceptable to the conservative wing of the party.

"I think he's going to go for broke on this," said Democratic political consultant David Axelrod. "The religious right has an enormous influence on this administration. I think there's a strong expectation on their part he'll appoint anti-choice judges who would undo Roe."

Axelrod said the Republicans' strategy in the 2004 election was essentially to play to their conservative base.

"If you have a base-oriented strategy," he added, "you want to keep that base by maintaining a consistent and aggressive position" on issues important to it.

Abortion is an extremely divisive issue, but how people line up depends on how the question is asked.

According to the ACLU's Connell, polls consistently show that a majority of Americans believe that the decision on whether to carry a pregnancy to term should be that of the woman, not the government.

"If you ask whether they think abortion should be legal in cases of rape or when there's risk to the woman's health, you get high numbers," Connell said. "If you ask whether it should be legal for reasons like she wants to finish her education or she doesn't want any more children, the majority is smaller."

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jperes@tribune.com