Deseret News (Salt Lake City): Court turnover resets abortion debate

Friday's surprise retirement of Supreme Court Justice Sandra Day O'Connor -- considered a key vote keeping abortion widely legal in the United States -- throws into question the future of the procedure's availability and within hours of the announcement re- charged advocates on both sides of the country's most divisive issue.

Losing O'Connor, the moderate voice on the court who created the current legal standard that restrictions on abortion should not place an "undue burden" on women, resets the front lines of the debate, set to get under way again next fall when the court is scheduled to begin considering two cases.

"We're not talking theory. We're talking reality," said Rev. Patrick J. Mahoney, director of the Washington-based Christian Defense Coalition. "By January of next year, decisions will come out of the court on abortion. Status quo in the Supreme Court has really gone out the window."

"It could change everything for women," said Wendy Royalty, a spokeswoman for Planned Parenthood of Maryland.

Her retirement has an even greater impact than would the resignation of the ailing Chief Justice William Rehnquist, an abortion opponent whose potential replacement would be an "even exchange," as one advocate said.

Advocacy groups sprang into action quickly Friday.

Within minutes of the news that O'Connor would retire, NARAL Pro- Choice America's Web site had been transformed into a campaign headquarters for the fight ahead, asking visitors to donate money and write to their senators "to vote NO on anti-choice nominees!" Press releases were flying; e-mails sent by the thousands. The National Organ- ization for Women planned an "emergency rally to save women's lives" in Nashville, Tenn., for Saturday.

Anti-abortion groups were gearing up, too. Mahoney, for one, has already planned vigils, rallies and demonstrations outside the Supreme Court building to coincide with the nominee's confirmation hearing.

"Nobody's wasting any time getting on this," said Kathy Kleeman with the non-partisan Center for American Women and Politics at Rutgers University. "This issue is going to be right in the middle of it."

O'Connor, appointed by President Reagan, was never embraced by those on the right, who picketed her confirmation hearings. After Reagan left office, though, she made some of her crucial decisions on abortion.

In Planned Parenthood v. Casey, the 1992 case that largely reaffirmed abortion rights, though did not leave them intact, O'Connor was one of those who wrote for the majority. In 2000, the last time the court took up a major abortion case, she was a member of the 5-4 majority that struck down a Nebraska ban on a late-term abortion procedure that opponents call "partial-birth" mainly because it did not make an exception for women's health.

Many on both sides of the abortion question say what they want to know is where a nominee stands on Roe v. Wade, the landmark 1973 Supreme Court case that legalized abortion.

Those on the right feel they have been burned in the past by nominees who turned out not to share some of the key views of the Republican presidents who nominated them (Justices Anthony Kennedy and David H. Souter, for two examples).

Members of the religious right, who feel responsible for returning Bush to office for a second term, will not be satisfied by a nominee with soft or fuzzy credentials on abortion rights, observers said. Conservative blogs are already teeming with worries about putting Attorney General Alberto R. Gonzales, who they don't think is a big enough opponent of abortion, on the bench. Advocates for abortion rights will insist on someone who shares their desire to maintain the "right to choose."

"We should not have the senators playing Russian roulette, guessing where a nominee stands on critical constitutional protections," said Nancy Northup, president for the Center for Reproductive Rights, a legal advocacy group that argued against the so-called "partial-birth" abortion ban before the court in 2000.

Steve Elmendorf, a Washington-based Democratic strategist, said Bush's decision on who should replace O'Connor will be a difficult one. For years, Elmendorf said, Bush has tried to straddle a line, calling himself a "compassionate conservative" while also playing to the base of his party's right wing. Douglas Johnson, legislative director of the National Right to Life Committee, said he doesn't think a nominee should have to answer the abortion question head on. Finding out if the nominee will strictly follow the U.S. Constitution is enough, he said.

Nominees, he said, "are not supposed to predict how they're going to rule on future cases that will come before them."

It is unlikely, even with O'Connor's retirement and another, that Roe would be overturned -- a majority of the remaining justices still favor letting the decision stand. Besides Rehnquist, only two other justices, Antonin Scalia and Clarence Thomas, have said Roe v. Wade should be overturned.

According to a June poll by the Pew Research Center for the People & the Press, 63 percent of those surveyed rejected completely overturning Roe. That margin has remained stable for more than a decade.