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Abortion is again focus of Supreme Court confirmation

WASHINGTON — Moments after President Bush nominated John Roberts to the Supreme Court, abortion rights advocates launched their opposition.

NARAL Pro-Choice America e-mailed a form letter to 800,000 members and supporters to send to their senators. "As your constituent, I am urging you to oppose John Roberts...," it said. "If Roberts is confirmed to a lifetime appointment, there is little doubt that he will work to overturn Roe v. Wade..."

Abortion abolitionists were just as quick in response.

"We appreciate President Bush for being a man of his word by appointing a judge who will respect the right to life acknowledged by our nation's founding documents," said Troy Newman, president of the activist anti-abortion group Operation Rescue.

"We pray that Roberts will be swiftly confirmed," he declared shortly after the nomination.

As it has been for virtually every Supreme Court nomination since the landmark 1973 decision guaranteeing women the right to end an unwanted pregnancy, the abortion issue is likely to dominate the political fight over whether Roberts, a U.S. appeals court judge, is confirmed to succeed retiring Justice Sandra Day O'Connor.

"NOW will fight Roberts' confirmation through a nationwide grassroots lobbying campaign," said Kim Gandy, president of the National Organization for Women. "Among our many concerns, Roberts actively opposes Roe v. Wade ..."

However, the stakes may not be as high as both sides advertise.

Even if Roberts were confirmed and turned out to be reliably anti-Roe, his vote alone would not overturn the landmark decision.

In 1992, Roe was reaffirmed by a scant 5-4 majority in the Pennsylvania case of Planned Parenthood v. Casey. However, that minority included Justice Byron White, who has since retired and died. He was replaced by Justice Ruth Bader Ginsburg, who supports Roe.

The current court — including retiring Justice O'Connor — supports Roe by a 6-3 majority. Only three current members — Chief Justice William Rehnquist, along with Justices Antonin Scalia and Clarence Thomas — believe the case was wrongly decided and have voted to overturn it.

If a Justice Roberts joined the ranks of the opponents, the decision would still be upheld 5-4. Since Rehnquist may be the next retiree due to his poor health, that majority would hold even if the chief justice were replaced by another Roe opponent.

And some conservatives are not convinced that Roberts would vote to overturn Roe.

"It means nothing that NARAL and Planned Parenthood attack him. They also attacked Sandra Day O'Connor, Anthony Kennedy and David Hackett Souter," wrote columnist Ann Coulter.

Justices O'Connor, Kennedy and Souter were all appointed by Republican presidents who were elected on anti-Roe campaigns. After confirmation, however, all three have supported abortion rights in their decisions.

Abortion rights were a focus of Roberts' 2003 confirmation hearings for the federal appeals court. Near their conclusion, Sen. Richard Durbin, D-Ill., tried to pin down the nominee.

"When we asked repeatedly in questions of you 'what is your opinion on Roe v. Wade,' you have basically danced away and said, 'No, no, my personal views mean nothing and I am just going to apply the law.' This, to my mind, is evasive," said Durbin. "...So I am asking you today, what is your opinion on Roe v. Wade?"

"Roe v. Wade is the settled law of the land...It's a little more than settled. It was reaffirmed in the face of a challenge..." Roberts replied. "There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent..."

Roberts was confirmed by a voice vote. However, his answer did not satisfy some on both sides of the abortion issue.

As a deputy solicitor general of the United States more than a decade ago, Roberts "opposed the right to privacy and argued to overturn Roe v. Wade, saying the case is 'wrongly decided' and that he 'finds no support in the text, structure or history of the Constitution'," said Sen. Edward Kennedy, D-Mass. "We have a duty to ask where he stands on these issues."

But some abortion opponents were also unswayed.

"The words of John Roberts in his testimony before the U.S. Senate in 2003 are despicable. He is upholding the flawed legal theory that the legal precedents of the Supreme Court are the 'supreme law of the land.' God's law is always higher than man's law, " said Steve Lefemine, director of Columbia Christians for Life in Columbia, S.C.

"John Roberts is no Roy Moore," he said, comparing the federal judge unfavorably to the former Alabama jurist who fought unsuccessfully to keep the Ten Commandments in his courthouse.

Roberts' testimony that Roe is "settled law" was satisfactory for an appeals court nominee but the Supreme Court is all about unsettling laws. If five justices voted to reverse Roe, the issue would be returned to state legislatures where the laws concerning abortion were written before 1973.

While Roberts has not written an opinion on abortion as a federal judge, both sides in the debate have looked for clues in legal briefs he helped write as a deputy solicitor general under the first President Bush.

In a 1990 case, Roberts helped compose the legal defense when abortion rights advocates and other opponents challenged George H.W. Bush's decision to stop the use of public funds for abortion counseling.

"We continue to believe that Roe was wrongly decided and should be overruled," said the Bush administration brief, which was signed by Roberts' boss, Solicitor General Kenneth W. Starr, as well as by six other administration attorneys, including Roberts.

This brief in that case, Rust v. Sullivan, also said "the Court's conclusions in Roe that there is a fundamental right to an abortion and that the government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution."

At his appeals court confirmation hearing, Roberts said he was writing as the legal advocate for the Bush administration — not advancing his personal views.

"I think the standard phrase is 'zealous advocacy on behalf of a client.'" he told the Senate Judiciary Committee.

The other case that has aroused abortion rights advocates is Bray v. Alexandria Women's Health Clinic when the first Bush administration filed a brief in support of Operation Rescue about access to abortion clinics. The claim sought to establish that Operation Rescue's demonstrations to block access to abortion clinics constituted discrimination against women, since only women have abortions.

The Bush administration argued that the protests did not amount to gender discrimination — that Operation Rescue was biased against people having abortions but not women in general.

The Supreme Court supported the Bush administration's position, written at least in part by Roberts. But even in concurrence, Justice Souter said "It is also obvious that petitioners' conduct was motivated 'at least in part' by the invidious belief that individual women are not capable of deciding for themselves whether to terminate a pregnancy or that they should not be allowed to act on such a decision."

The abortion fight has also focused on Roberts' religion and his wife's membership in Feminists for Life of America. The Roberts are Catholic and members of the Church of the Little Flower in Bethesda, Md.

But at his confirmation hearings, Roberts said his views outside the courtroom do not affect his actions within it.

"There is no role for advocacy with respect to personal beliefs or views on the part of a judge," he testified.