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This time, next president to have pivotal 'Roe' role

WASHINGTON — Every four years, defenders of abortion rights proclaim that the fate of Roe vs. Wade hangs on the outcome of the presidential election.

This year, they might be right.

Through most of the 1990s and until recently, the Supreme Court had a solid 6-3 majority in favor of upholding the right of a woman to choose abortion. But the margin has shrunk to one, now that Justice Sandra Day O'Connor has retired and been replaced by Justice Samuel Alito.

And Justice John Paul Stevens, a leader of the narrow majority for abortion rights, is 88 years old.

"Clearly, Roe is on the line this time," says Indiana University law professor Dawn Johnsen, formerly a lawyer for NARAL Pro-Choice America. "It is quite clear they have four votes against it. If the next president appoints one more, the odds are it will be overruled."

Some advocates worry that the perennial cries of "Roe is falling" has had the effect of muting such claims.

"What we find scary is that people don't understand what's at stake," says Kathryn Kolbert, president of People for the American Way. "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."

But that doesn't mean abortion or the fate of the Roe decision is a rallying cry on the campaign trail for either Democrats or Republicans. The two parties have staked out opposite positions, but their candidates rarely mention them when campaigning.

The abortion issue is enormously important to the base of both parties, political strategists say, but it is a touchy and difficult matter to raise with an audience of swing voters and those who are undecided.

When Sen. John McCain was considering his choices for a running mate, conservative activists threatened a rebellion at the GOP convention in St. Paul, Minn., if he chose a supporter of abortion rights, such as former Pennsylvania Gov. Tom Ridge. Instead, McCain galvanized his support with conservative activists when he chose Alaska Gov. Sarah Palin, who opposes abortion even in cases of rape and incest.

McCain's Web site says he "believes Roe vs. Wade is a flawed decision that must be overturned."

Sen. Barack Obama has called himself a strong supporter of abortion rights. "A woman's ability to decide how many children to have and when, without interference from the government, is one of the most fundamental rights we possess," he told NARAL Pro-Choice America. "I believe we must work together to reduce the number of unintended pregnancies," he added.

Polls show the American public remains closely split on abortion. Most say they favor legal abortion, with some restrictions.

This week, the Supreme Court opens its new term; abortion is not on the docket.

The justices generally have steered away from abortion-related disputes in recent years. They remain closely and bitterly divided on the issue.

Four justices — Ruth Bader Ginsburg, David Souter, Stephen Breyer and Stevens — consistently have supported the right to abortion, and they have voted to strike down restrictions.

Justices Antonin Scalia and Clarence Thomas have said Roe vs. Wade should be overturned, leaving the states or Congress to decide the abortion issue.

Chief Justice John Roberts and Alito were young lawyers in the Reagan administration, which was committed to reversing Roe. And since joining the court, they voted to uphold the federal Partial-Birth Abortion Ban Act.

Positioned in the middle, Justice Anthony Kennedy has supported strict regulation of abortion, but he has opposed a ban.

If Stevens or Ginsburg were replaced by a staunch conservative, that could tip the majority against abortion rights. It is not certain, however, that Roberts and Alito would join Scalia and Thomas in pressing to overrule the right entirely.

Some conservative lawyers agree that a McCain victory would only set the stage for overruling Roe. Regardless of who wins the White House, Democrats probably will maintain a majority in the Senate, and they could block a staunchly conservative McCain nominee to the Supreme Court.

"I think the consensus is Roe will fall slowly and incrementally, not in one decision," says Wendy Long, a former clerk for Thomas and counsel to the Judicial Confirmation Network, which was formed to support President Bush's nominees. "And the day after Roe is reversed, abortion still will not be illegal," she added, as many states would not outlaw it.

Edward Whelan, a former Scalia clerk and president of the Ethics and Public Policy Center, a conservative-leaning think tank that studies the role of religion in public life, believes it would take more than one new justice to cause a dramatic shift in abortion law.

"I would say if we get a President McCain and he gets several appointments, there is a prospect of overturning Roe vs. Wade and returning abortion policy to the democratic process," he said.

Peter Fenn, a veteran Democratic strategist, said that prospect should be enough to energize supporters of abortion rights. "If you are pro-choice," he said, "the stakes are pretty obvious."

This time, next president to have pivotal 'Roe' role 10/05/08 [Last modified: Wednesday, November 3, 2010 2:56pm]
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