Several Newspapers Examine Effect New President Would Have On Supreme Court, Roe V. Wade

Main Category: Medical Malpractice / Litigation
Also Included In: Abortion
Article Date: 07 Oct 2008 - 5:00 PDT

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The fate of Roe v. Wade has become an issue of concern in this year's presidential election between abortion-rights opponent Sen. John McCain (R-Ariz.) and abortion-rights supporter Sen. Barack Obama (D-Ill.), the Los Angeles Times reports. Possible retirements of several Supreme Court justices could affect whether the Supreme Court maintains its slight majority in favor of upholding the decision. According to the Times, at least five Supreme Court justices support upholding court precedents on abortion rights, but if a supporter of Roe were replaced by a conservative nominee under a McCain administration, it could tip the majority against abortion rights.

According to the Times, four justices -- Ruth Bader Ginsberg, David Souter, Stephen Breyer and John Paul Stevens -- consistently have supported abortion rights and have voted to strike down certain restrictions. Justice Anthony Kennedy has upheld limits on abortion but has opposed abortion bans. Justices Antonin Scalia and Clarence Thomas have said Roe should be overturned, leaving the states or Congress to decide the abortion-rights issues. Chief Justice John Roberts and Justice Samuel Alito both served as lawyers in President Ronald Reagan's administration, which was committed to reversing Roe. Roberts and Alito both voted to uphold the federal Partial-Birth Abortion Ban Act. The Times reports that it is not certain that Roberts and Alito would join Scalia and Thomas in pressing to overrule abortion rights entirely.

Dawn Johnsen, an Indiana University law professor and former lawyer for NARAL Pro-Choice America, said, "Clearly, Roe is on the line this time," adding, "It is quite clear they have four votes against it. If the next president appoints one more, the odds are it will be overruled." Kathryn Kolbert, president of People for the American Way, said, "What we find scary is that people don't understand what's at stake. In the next four years, one to as many as three Supreme Court justices may step down, and they all will come from the liberal end of the court." Wendy Long, a former clerk for Thomas and counsel for the conservative Judicial Confirmation Network, said she believes the "consensus is Roe will fall slowly and incrementally, not in one decision" (Savage, Los Angeles Times, 10/5).

The Washington Post reports that any effort by McCain to replace a more liberal justice with a more conservative one would be extremely difficult if the Democrats maintain their majority in the Senate, which could block his appointments. Miguel Estrada, a lawyer whose nomination to a federal appellate court was blocked by Democrats, said, "It would be impossible for him to get somebody who's extremely conservative confirmed ... in a Democratic Senate." John McGinnis, a constitutional law expert and professor at Northwestern University, said that the best way for McCain to appoint someone close to his "ideological ideal point" would be to nominate a woman or a minority, making it more difficult for Democrats to oppose.

Walter Dellinger, a Supreme Court lawyer who was acting solicitor general in former President Clinton's administration, said that Stevens, Ginsberg and Souter likely would step down in the next four years if Obama is elected, allowing Obama to appoint similar-minded justices. McGinnis said what presidents "really want to do in reshaping the court is change the median justice," adding, "That changes a lot more votes in the long run than just exchanging one liberal for another or one conservative for another." Because the justices believed to be considering retirement are liberals, the advantage of McGinnis' assertion would go to McCain, the Post reports (Barnes, Washington Post, 10/6).

According to the New York Times, both presidential campaigns are watching to see if the future of Roe becomes a "galvanizing" force for voters in swing states such as Ohio and Pennsylvania, but advisers for both candidates say it is unlikely social issues such as abortion rights will be more important in the election than the troubled economy. The Times reports that Obama advisers "are being especially vigilant about not allowing anything to overshadow" economic issues (Healy, New York Times, 10/5). Furthermore, McCain's choice of Alaska Gov. Sarah Palin (R) -- who opposes abortion rights even in cases of rape and incest -- as his vice presidential running mate has solidified his support among the Republican Party base and consequently gives him no reason to campaign on the issue. Kenneth Khachigian, a California attorney and a campaign adviser for former president Reagan, said, "At this stage, when you focus on the 10% who are out there and have not decided, you can figure they are not going to decide based on your view of abortion or Roe v. Wade" (Los Angeles Times, 10/5).

Opinion Piece

Boston Globe columnist Ellen Goodman in an opinion piece makes her "quadrennial and usually futile plea" to consider the judicial branch and abortion rights when voting in the November election. Although most "Americans have some civics-class understanding that the Supreme Court hangs in the electoral balance," the "court rarely rises to the top of the voting issue," Goodman writes.

However, the justices most likely to retire are the moderate or liberal Stevens, Ginsberg and Souter, Goodman writes, adding that McCain is "out to overturn" Roe. Abortion-rights groups have been "crying wolf for so long that it's hard to believe that the wolf is actually at the door," but a ballot measure in South Dakota aimed at banning abortions except in cases of rape or incest, to save a woman's life or to avert a "substantial and irreversible" maternal health risk of impairment to "a major bodily organ or system" is "directly pointed at Roe and targeted to arrive at the Supreme Court in time to greet a new justice," according to Goodman. She adds, "If what happens in South Dakota doesn't stay in South Dakota, a woman's right will depend on whether she has enough gas to drive to the next, or the next or the next state" (Goodman, Boston Globe, 10/4).

~ NBC's "Nightly News" on Saturday reported on the presidential and vice presidential candidates' stances on abortion rights. The segment includes comments from McCain, Obama, Democratic vice presidential nominee Sen. Joe Biden (Del.) and Cynthia Daniels, an associate professor of political science at Rutgers University (Ellis, "Nightly News," NBC, 10/4).

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