It’s the Supreme Court, Stupid


In 1992 Democratic presidential hopeful Bill Clinton’s advisers used a simple campaign mantra that expressed the nation’s most compelling concern for that year’s election: “It’s the economy, stupid.” This year, Al Gore would do well to adopt that simple phrase for his own campaign, with one slight alteration to highlight what might well turn out to be the most defining issue between him and fellow presidential candidate George W. Bush: “It’s the Supreme Court, stupid.”

The reason: With as many as four retirements looming on the court, the next president’s appointments are likely to set the course of American justice for decades to come. (The last time there were so many vacancies, Richard Nixon inhabited the Oval Office.) John Paul Stevens is 80; Ruth Bader Ginsburg is 67, but has had recent health complications; Sandra Day O’Connor is 70; Chief Justice William Rehnquist is 76. The first three have been essential in upholding Roe v. Wade in a spate of recent Supreme Court rulings. Rehnquist is the only anti-choice justice who is likely to step down.

In its eight years, the Clinton administration has appointed only two new justices, Ruth Bader Ginsburg and Stephen Breyer, both of whom endured grueling questions about their stances on abortion. For more than a decade the Republican platform has stipulated that abortion should be a “litmus test” for potential justices. With Clinton in office, the impact was minimal. But should George W. Bush—son of the president who gave us ultraconservative Clarence Thomas—be elected, says Vicki Saporta, executive director of the National Abortion Federation, “you can kiss Roe v. Wade goodbye.”

The core argument of Roe v. Wade—that women have the right to make private decisions concerning reproduction without government interference—has survived, if only barely, thanks to a fragile coalition of liberal and moderate justices. Three judges, Antonin Scalia, 64, Clarence Thomas, 52, and Rehnquist, are vehemently opposed to abortion rights, while three others—Stevens, Bader Ginsburg, and 60-year-old Breyer—are staunchly in favor. O’Connor, David Souter, 62, and Anthony Kennedy, 64, are considered moderate, and they often tip the scales between the pro- and anti-choice contingents within the Supreme Court.

The three moderates are on record as pro-choice, but also uphold a 1992 Supreme Court decision allowing states to impose limitations on abortion as long as the restrictions do not impose an “undue burden” on women. As a result, in some states parental notification and consent laws, mandatory waiting periods, and enforced anti-abortion counseling sessions at state-funded clinics are the norm. What constitutes an undue burden is something the court must decide anew each time one of these state laws is challenged.

Since 1973, the year the Supreme Court upheld women’s right to an abortion, the anti-choice movement has presented no fewer than 29 arguments to the court —all of them seeking either to eliminate or restrict the basic freedom granted in Roe v. Wade. While the court has continued to protect women’s right to choose, the foundation of the right-to-privacy argument has slowly been eroded. A perfect example: the case that arose out of Congress’s attempt to implement a ban on “partial birth” abortions—a term that infuriates abortion rights groups, because no such procedure actually exists.

Carefully crafting their terminology, anti-choice activists introduced a bill that sought to outlaw medical procedures involving dilating the cervix and extracting the fetus. Congress passed the ban twice and would have made it a federal law had not Clinton vetoed it both times. (The Senate tried to overturn the veto, missing the necessary two-thirds majority by only three votes.) Thwarted in Congress, anti-choice legislators regrouped at the state level, managing to restrict “partial birth” abortions in 30 states.

The Center for Reproductive Law and Policy (CRLP), a nonprofit pro-choice legal group, challenged the constitutionality of the ban in Nebraska, and the case eventually wound up in the Supreme Court, reborn as Stenberg v. Carhart. Arguing that the ban’s deliberately vague wording would in reality limit almost all abortion procedures, the CRLP emerged victorious. But what horrified pro-choice advocates was the narrowness of the Stenberg decision: Only five justices thought the ban placed an “undue burden” on a woman—Stevens, Bader Ginsburg, Breyer, Souter, and O’Connor. The other four—Scalia, Thomas, Rehnquist, and Kennedy—ruled in favor of the ban. The fate of women’s reproductive freedom rested on one vote—that of the moderate Souter.

“In 1973 the Roe v. Wade decision was seven to two,” says Erica Pelletreau, legislative director for the National Abortion and Reproductive Rights Action League (NARAL) in New York. “In 2000 we get a five-to-four decision on legislation that would cut the foundation out from under Roe v. Wade. There’s no doubt the Supreme Court is getting more conservative.” It’s no surprise that NARAL has publicly endorsed Al Gore’s campaign.

Neither presidential candidate will discuss potential appointees, but Bush touts Scalia and Thomas as his “favorites.” In an attempt to appeal to moderate voters, Bush claims to favor allowing abortions in the case of rape, incest, or health risk to the mother, but he also endorses the Republican Party’s abortion plank: no abortion, no exceptions. While Bush tries to maintain at least the facade of a more tempered approach to reproductive freedom, his party is pushing hard to win more anti-choice seats in November’s House and Senate elections.

In the long run, these two elections may have more impact on women’s reproductive freedom than the presidential race. For the past eight years the House of Representatives has been in Republican hands, something pro-choice advocates are desperate to change, so that, as Saporta says, “we won’t have to deal with a new piece of legislation every month that’s trying to limit women’s right to choose.” While pundits predict Republicans will maintain control of the House, they don’t expect staunch anti-choice candidates to gain a majority.

The real battle for pro-choice advocates will be in the Senate—because it is there that court nominees are approved, by a two-thirds majority vote. In the unlikely event that anti-choice candidates win all 34 available seats, they will still fall a few votes shy of the 67 needed for the majority. The more immediate danger comes from moderate candidates, many of whom call themselves pro-choice but nevertheless believe in passing legislation restricting women’s reproductive rights—and will probably approve justices who feel the same way. So frightening is this prospect that even some Republicans are starting to sound alarm bells. “We cannot endorse a candidate who follows the current Republican abortion platform,” says Lynn Grefe, national director of the Republican Pro-Choice coalition. “We support our party, we are firm Republicans, but we will not endorse George W. Bush unless he changes his stance on abortion.”

The schism in the Republican Party may play into the hands of Al Gore, who is busy extolling his pro-choice record to anyone who will listen. And that may be all the millions of people who value reproductive freedom need to hear. As voters start to study the issues, pro-choice advocates hope to drive one point home: Senators, representatives, even United States presidents come and go; Supreme Court justices can last a very long lifetime.

Research assistance: Shelley E. Molina

This article from the Village Voice Archive was posted on August 29, 2000

Archive Highlights