USA Today, NPR Examine Future Of The Supreme Court, Impact On Abortion Legislation

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 03 Nov 2008 - 5:00 PDT

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USA Today on Friday examined the future of the Supreme Court and the effect that potential judicial appointments could have on Roe v. Wade. USA Today reports that "[m]uch has changed" since former justice Sandra Day O'Connor, an abortion-rights supporter, retired in 2006 and Samuel Alito, an abortion-rights opponent, replaced her. This is the "first election year since the mid-1990s when the court appears one vote from altering" Roe, according to USA Today. The current five justices who support abortion rights would likely reaffirm Roe, but just one court appointee from either presidential candidate Sen. John McCain (R-Ariz.) or Sen. Barack Obama (D-Ill.) could determine the future of abortion rights, a "point [that] is not lost on advocates in the abortion debate," USA Today reports.

Justice Anthony Kennedy -- often a swing vote and one of the five justices who supports abortion rights -- has recently written in support of giving states "more latitude to restrict abortion" and in 2007 voted to uphold the federal Partial Birth Abortion Ban Act of 2003. The legal reasoning expressed in that opinion could open the door for "a whole variety of restrictions on abortion" and could have a "cumulative effect of overruling Roe," Indiana University law professor Dawn Johnsen said. David Garrow, a senior fellow at the University of Cambridge who has written extensively on U.S. abortion rights, said Roe will remain secure "as long as Justice Kennedy remains the crucial fifth vote."

Charmaine Yoest, president of Americans United for Life, said Roe could be changed after this "historic election" because of the potential opportunity for the next president to appoint one or more justices to the court. The public "gets it," Nancy Keenan, president of NARAL Pro-Choice America, said, adding that they have "seen it in recent cases" and with McCain, "who has been far more specific about the overturning of Roe than George Bush was" in the 2000 election.

According to USA Today, McCain has said that if elected he would work to overturn Roe, and in the final presidential debate, he said that "decisions (regarding abortion laws) should rest in the hands of the states." Obama is a supporter of abortion rights and said during the last debate that Roe was "rightly decided," adding that the Constitution "has a right to privacy in it that shouldn't be subject to state referendum" (Biskupic, USA Today, 10/31).

NPR Examines McCain, Obama's Views on Judicial Appointments

In a two-part series, NPR's "All Things Considered" looked at how judicial appointments by the next president could change the balance of the Supreme Court. Summaries appear below.

~ McCain Presidency: Unless some younger members of the court's conservative majority retire or die unexpectedly, conservatives will keep their upper hand on most issues before the court. However, if McCain is elected president, the Supreme Court will "likely become yet more conservative" and "conservatives will solidify their control for another generation," NPR reports. Two vacancies -- the spots currently occupied by liberal justices John Paul Stevens and David Souter -- are widely expected in the next few years. Because the departing justices are from the "liberal wing" of the court "replacing them with liberals wouldn't make any difference, at least in terms of generic vote counting," NPR reports. Conservative appointments to replace Stevens and Souter "would strengthen the conservative majority to six to three or seven to two," NPR reports. In addition, conservative appointments would mean that the conservative majority would not have to rely on Kennedy to support them, nor would they have to moderate conservative opinions to appease Kennedy (Totenberg, "All Things Considered," NPR, 10/29).

~ Obama Presidency: Brad Berenson -- a former associate White House counsel under the current Bush administration who also worked with Obama as an editor at the Harvard Law Review -- said Obama's knowledge of the courts is greater than McCain's, NPR reports. Berenson said Obama "has thought far more about courts and constitutional issues than [McCain] has, and that may mean that a President Obama takes more personal interest and more of a personal hand in his judicial appointments than a President McCain would." Obama's views on Constitutional law, as expressed in his book "The Audacity of Hope," give insight into how he would view appointments to the Supreme Court, NPR reports, adding that in the book he argues that the "Constitution speaks in generalities that cannot tell us what the founders would have thought about modern dilemmas" (Totenberg, "All Things Considered," NPR, 10/30).

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