Washington – In 2003, abortion opponents took a calculated gamble and pushed through the Partial Birth Abortion Ban Act, a federal law very similar to a state law ruled unconstitutional just three years before.
Critics asserted they were defying the court and doomed to fail in any legal challenge. Strategists for the anti-abortion movement were betting that the Supreme Court would soon be different: more conservative, and more open to an array of new abortion restrictions.
With the retirement of Justice Sandra Day O’Connor, part of the court’s majority for abortion rights, that gamble may soon begin to pay off.
The basic right to abortion, declared in Roe vs. Wade in 1973, will survive regardless of who replaces O’Connor, given that the current majority for Roe is 6-3, many experts agree.
Chief Justice William H. Rehnquist is one of the two original dissenters from the 7-2 Roe decision; if he retires, as has been widely speculated, President Bush would presumably replace him with a similar conservative, so that would not change the balance on Roe.
But a number of cases that are likely to reach the court in the next few years, including the latest versions of the ban on the procedure that critics call partial- birth abortion, may give a new set of justices the opportunity to restrict abortion in significant ways.
In short, even without overturning Roe, the new court could seriously limit the decision’s reach and change the way abortions are regulated across the country, experts say.
This means Bush’s nominees will be intensely scrutinized, by all sides, on their records, past rulings and general philosophy on abortion.
In the term beginning this fall, the court will review its first major abortion case in five years, involving a parental notification law from New Hampshire. Not far behind, perhaps, will be the 2003 “partial-birth” law. On Friday, the 8th U.S. Circuit Court of Appeals, in St. Louis, upheld a lower court’s decision to strike down the law as unconstitutional, a case that could also go to the Supreme Court.
Those cases could give the court a chance to revisit one of the most bitterly disputed areas of abortion law: whether an abortion statute must include an explicit exception to allow the procedure, if necessary, to preserve the woman’s health.
Abortion opponents say such health exceptions give doctors too much discretion to circumvent restrictions by invoking the woman’s health, even if it involves emotional and nonphysical issues.
The anti-abortion movement has been waiting for a new court for a long time. For years, abortion opponents have focused on passing step-by-step abortion restrictions in state legislatures and Congress, only to have them challenged in federal court and sometimes thrown out. O’Connor, in their view, was an obstacle in the way of restrictions that had broad political and popular support, notably the “partial-birth” ban.
For abortion-rights advocates, it is a moment of growing peril. In their view, O’Connor was perhaps the last protection against a Congress, a president and a sizable number of state legislatures intent on chipping away at the rights established in Roe.