George W. Bush is far from the peak of his power as president, but in one area of social policy — the regulation of abortion — Bush’s agenda is triumphant.
Wednesday’s Supreme Court decision upholding the ban on the procedure called partial-birth abortion is a victory for Bush and for social conservatives at a time when they’ve had little to celebrate.
In the 5-4 ruling in a case called Gonzales v. Carhart, Bush’s two appointees to the high court, Chief Justice John Roberts and Associate Justice Samuel Alito supplied the margin of victory.
“It confirms that elections have consequences,” said Sen. Barbara Boxer, D- Calif. Thursday, alluding to Bush’s re-election and the seven GOP Senate wins in 2004 which set the stage for the appointment of Roberts and Alito.
Boxer introduced legislation Thursday which could have the effect of overturning the court’s decision.
Wednesday’s ruling raises the stakes for the 2008 presidential election, which is almost certain to pit an abortion-rights Democrat against an anti-abortion Republican.
Stevens the oldest justice at 87
“We have to get a pro-choice president who means it into the White House in the next election,” Boxer said. The contest is all the more crucial because Justice John Paul Stevens, a dissenter in Wednesday’s ruling, celebrates his 87th birthday Friday.
Stevens, who has become a leader of the liberal wing in his 31 years on the Supreme Court, is unlikely to serve more than a few more years.
“Justice Stevens is going to be strong and healthy, because he’s got all the women praying for him,” Boxer cracked Thursday.
Justice Ruth Bader Ginsburg, who wrote the dissenting opinion Wednesday, is, at age 74, the next oldest justice.
Bush signed the partial-birth abortion ban into law in 2003; President Clinton had twice vetoed a similar ban. With a Congress in which there’s still support for the ban, it would seem the only way to go back to the more accommodating abortion policy of the 1990s is to elect a Democratic president. She or he could replace retiring justices with jurists inclined to reverse Gonzales v. Carhart and defend the landmark 1973 Roe v. Wade decision.
Calling the majority’s ruling “alarming” and “irrational,” Ginsburg seemed to be handicapping the 2008 presidential race in her dissent.
Ginsburg noted that today’s court is “differently composed than it was when we last considered a restrictive abortion regulation” in 2000 when the justices, with Sandra Day O’Connor holding the chair now held by Alito, struck down Nebraska’s ban on partial-birth abortion.
Ruling with no 'staying power'?
She seemed to hint, or hope, that a future court with different justices might undo Wednesday’s ruling: “A decision so at odds with our jurisprudence should not have staying power.”
The presidential hopefuls lined up neatly in the response to Wednesday’s ruling: Democrats aghast; Republicans applauding.
“It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito,” said Sen. Hillary Clinton, D- N.Y.
The only Democratic presidential contender who voted for the 2003 ban is Sen. Joe Biden of Delaware.
Biden said in a statement Thursday that Gonzales v. Carhart "contains troubling reasoning that could lay a powerful foundation to dismantle basic legal precedent. The Supreme Court’s rationale reflects a decided turn to the right under the new leadership of the Chief Justice Roberts and Justice Alito," both of whom he voted against.
Republican hopeful Rudy Giuliani was supportive of Wednesday’s decision, but terse: “The Supreme Court reached the correct conclusion in upholding the congressional ban on partial birth abortion. I agree with it.”
Giuliani opposed a ban on the partial birth abortion procedure in 1999; his statement Wednesday did not explain why he’d changed his position.
Sen. Sam Brownback, R- Kansas, who carries the banner for social conservatives in the GOP presidential fray, was more expansive in his praise, saying the ruling “is completely in line with the respect for life that is at the very heart of our Constitution” and “a great step forward for our nation’s citizens, born and unborn.”
He hoped that “this decision signals the Court's willingness to revisit and reverse Roe v. Wade,” the ruling that legalized abortion throughout the United States.
A timely Election Year vote?
A decision Democratic congressional leaders face in the next several months is whether to move to Boxer’s legislation, sponsored in the House by Rep. Jerrold Nadler, D- N.Y.
It’s a vote which some Democrats up for re-election next year in Republican-leaning states, such as Sens. Mary Landrieu of Louisiana, Mark Pryor of Arkansas, and Tim Johnson of South Dakota, might welcome since it would give them a chance to remind voters of their conservative stand on abortion.
All three Democrats voted for the 2003 ban, as did Senate Majority Leader Harry Reid.
On the other side of the aisle, Republican Sen. Susan Collins of Maine, who voted against the ban and is also up for re-election next year, would get an opportunity to brandish her pro-choice credentials.
Ellen Malcolm, head of the Democratic abortion rights group Emily’s List, said Gonzales v. Carhart will be on the minds of independent and Democratic voters in next year’s elections.
“They will understand that we are now only one vote away from completely overturning Roe and so you don’t want the Republicans in there appointing one more Supreme Court justice,” she said. Malcolm supports Clinton’s presidential bid.
Democrats see vulnerable GOP senators
Assessing the potential for Democratic Senate gains next year, Malcolm said Collins “straddles the fence on this issue and the other Republicans that I think are particularly vulnerable, (Norm) Coleman in Minnesota, (John) Sununu in New Hampshire, and (Gordon) Smith in Oregon are completely anti-choice. In those four races particularly this issue could have an effect.”
For abortion-rights advocates, Wednesday’s ruling was an “I told you so” moment, and a reminder of what might have been, had Senate Democrats chosen to mount a more vigorous effort to block Alito with a filibuster. “Let this decision be a lesson to those senators, editors, and pundits who thought it unseemly to filibuster Sam Alito’s nomination,” said Kim Gandy president of the National Organization for Women.
Sen. John Kerry, D- Mass. flew back from Switzerland in January of 2006 to call for a filibuster, but the effort fizzled as Alito backers won the vote to curtail debate and move on to a vote on his nomination.
Schumer's regrets
Alito was confirmed 58 to 42. Two GOP senators, Collins and her Maine colleague Olympia Snowe, who’d voted against the partial-birth abortion ban, also voted for Alito.
Sen. Charles Schumer, D- N.Y., the head of the Democratic Senatorial Campaign Committee, said the week after last November’s election: “I will tell you my greatest regret in last two years is that we didn’t stop Alito… I was never for a filibuster of Roberts, even though I voted against him…. You don’t filibuster unless you think someone is way out of the mainstream. I was unclear on Roberts whether he was, but Alito clearly seemed to be.”
The impact of that loss to abortion rights forces was clear in Wednesday’s ruling, and clearer still if one considers longevity: if Alito serves for as long as Stevens has, it will be 2037 before a president gets to name his successor.