July 20, 2005
Wednesday

WASHINGTON - Republican presidents and their Supreme Court candidates are proof that the law of unintended consequences can reorder the nation's politics and priorities.

Roe v. Wade, the 1973 landmark decision that legalized abortion nationwide, is a case in point - and a case that will again be front and center in John Roberts' Senate confirmation hearings.

President Bush's choice of Roberts to replace the retiring Justice Sandra Day O'Connor won't change the fact that a majority of the court still supports abortion rights, although it may increasingly uphold regulations that limit the availability of abortions.

Roberts' abortion record is far from clear:

- As a Supreme Court advocate for the first President Bush in 1991, Roberts argued that "the court's conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure or history of the Constitution."

- As a 2003 federal appeals court nominee, he assured senators that Roe v. Wade "is the settled law of the land. ... There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

But as a Supreme Court justice, he would be free to overturn precedent on abortion, making the issue paramount for many senators and interest groups for and against his selection.

The current President Bush hadn't even announced Roberts' selection to succeed O'Connor before abortion-rights groups attacked him as "unsuitable," as NARAL Pro-Choice America President Nancy Keenan put it.

O'Connor, the justice at the center of a divided court on abortion and other social-values cases, set the legal standard that government can restrict abortion if those limits don't place an "undue burden" on a woman's abortion right.

But even the National Right to Life Committee has said "the Supreme Court would still have a pro-Roe majority" no matter the views of Bush's nominee to replace her.

The irony that abortion might stay legal and available, whomever Bush chose, wasn't lost on court watchers and others who have charted the issue's impact on the body politic since President Richard Nixon picked Harry Blackmun for a 1970 high-court vacancy.

Blackmun came recommended by his childhood friend from Minnesota, Warren Burger, Nixon's 1969 choice for chief justice. Burger assigned Blackmun to write two opinions in Roe v. Wade challenging a Texas statute that made it a crime to perform most abortions and a companion Georgia law. After all, Blackmun, a former counsel for the Mayo Clinic, understood medicine and the law.

Both rulings struck down state abortion bans and speeded social conservatives' migration into the Republican camp: By the time Ronald Reagan captured the presidency in 1980, running on an anti-abortion platform, court watchers expected Reagan appointees would spell Roe v. Wade's demise, but it wasn't to be.

O'Connor, Reagan's 1981 appointee, proved willing to let states do more to restrict abortion, and Antonin Scalia's selection in 1986 added a reliable anti-abortion vote.

Thus, by centrist Justice Lewis Powell's 1987 retirement, Roe v. Wade seemed very much at risk, prompting the pitched battle over Reagan nominee Robert Bork, a vocal critic of Roe and the constitutional "right to privacy" on which it is based.

The Senate failed to confirm Bork, but Reagan's selection of Anthony Kennedy instead still seemed to solidify the conservative majority, and with the elder Bush's 1990 choice of David Souter, Roe v. Wade again seemed doomed.

But O'Connor, Kennedy and Souter joined in 1992 to declare Roe v. Wade settled precedent. Two other Republicans, Blackmun and the Gerald Ford-appointed John Paul Stevens, gave Roe a five-member majority that year, and the group scored a net gain of one when Bill Clinton appointees Ruth Bader Ginsburg and Stephen Breyer arrived.

The lack of a Supreme Court vacancy since Breyer's confirmation 11 years ago hasn't prevented heightened cultural tension over abortion and other "culture of life" issues on which George W. Bush campaigned.

Assuming Roberts is confirmed, he and the Supreme Court will confront abortion this fall, when the justices hear New Hampshire's bid to reinstate its parental-notice law for minors seeking abortions. One of 43 states with similar rules, New Hampshire's was struck down in lower courts for not including a health exception for mothers.

Also working its way to the Supreme Court is the federal ban on so-called partial-birth abortion. That was invalidated by lower courts for violating a 5-4 Supreme Court ruling in 2000 that voided Nebraska's ban on late-term abortions for not excepting a woman's health.

The justices also will hear a Bush "culture of life" lawsuit challenging Oregon's "right to die" law legalizing assisted suicide for terminal patients.

And the raft of new laws guarantee to keep the court busy, whether it's rules requiring longer abortion waiting periods; mandates that abortions be performed in hospitals, not clinics; protections for pharmacists who cite conscience in refusing to fill birth-control prescriptions, or parental-consent requirements for contraception.

Court scholar David Garrow, author of "Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade," said a reconstituted Supreme Court could make it tougher to challenge government restrictions on abortion, contraception and the like and may give government new flexibility in defining what is an "undue burden" on a woman's right.

With such latitude, Garrow said, the fate of Roe v. Wade could be increasingly moot.

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