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VACANCY ON THE SUPREME COURT | NEWS ANALYSIS

If Ax Falls on Roe, It May Also Split GOP

July 04, 2005|Peter Wallsten | Times Staff Writer

WASHINGTON — Social conservatives relish the idea that Justice Sandra Day O'Connor's resignation from the Supreme Court has moved them one step closer to their goal of outlawing abortion. Liberals are vowing to fight any potential successor who would, unlike O'Connor, favor overturning Roe vs. Wade, the 1973 ruling that affirmed a woman's right to end a pregnancy.

But the political irony that few on either side readily acknowledge -- but many are pondering -- is that Roe's demise could transform American elections by crippling the conservative political majority that opposes abortion and by giving new life to hobbled liberals who support the ruling's preservation.

That the 32-year-old landmark decision could be overturned seems a distant possibility. Justices who believe the ruling should stand hold five seats on the nine-member court, even with O'Connor gone.

But the prospect of progress toward overturning Roe -- and the realization that President Bush could have at least two chances to make transformative appointments to the court -- has exposed a disagreement between conservatives who want abortion criminalized and pragmatic Republicans concerned that shifting the issue from the courts to the ballot box would lead to massive GOP losses.

Of particular concern is the party's fate in closely contested battlegrounds such as Ohio, Florida and Michigan, where the resurgence of the abortion issue could alienate moderate voters who have helped Republicans make gains on all levels.

"Smart strategists inside the party don't want the status quo changed," said Tony Fabrizio, chief pollster for the 1996 Republican presidential campaign of Bob Dole.

"This may cause Republicans like Arnold Schwarzenegger -- who are strongly committed to being pro-choice -- to flip or to push for a third-party movement," he added. "If they did outlaw it, it would ultimately turn the Republican Party into a theocratic-based party rather than an ideological party, and the party would necessarily start shedding people."

Strategists worry that overturning Roe would make abortion a top-tier political issue again, galvanizing liberals and moderates who have long assumed the issue was settled. At the same time, it would eliminate a major organizing principle of the evangelical movement that gained prominence in last year's elections. And Republican candidates, who have long sidestepped the issue by assuring moderate voters that judges had the final say on abortion, would suddenly be forced to say how they would vote on a woman's right to choose.

"A candidate could no longer say, 'I'm running for state representative, not the Supreme Court,' " said David Johnson, former director of the Republican Party of Florida, who has advised GOP campaigns, including that of John Thune, who last year defeated the Senate's top Democrat, Tom Daschle, in South Dakota. "That response would no longer be valid because their vote would matter."

Few experts believe O'Connor's resignation would swing the court on abortion, since five justices -- Anthony M. Kennedy, John Paul Stevens, Ruth Bader Ginsberg, David H. Souter and Stephen G. Breyer -- have indicated that they would not vote to overturn Roe. But social conservatives say O'Connor's departure offers the first chance in decades to reshape the court's ideological makeup. Kennedy is considered a swing vote, and Stevens' age -- he is 85 -- gives conservatives hope that the end of Roe is close at hand.

For that to happen, however, Bush would have to comply with conservative demands to appoint strict constructionists with the judicial philosophies of Justices Clarence Thomas and Antonin Scalia, both opponents of Roe.

As a candidate, Bush sent plenty of signals that he agreed with that approach, even calling the two men examples of his ideal nominee. During his reelection campaign last fall, the president referred repeatedly to a "culture of life," and he thrilled religious conservatives during a campaign debate when he described the 1857 Dred Scott decision affirming slavery as an example of a bad court opinion. Abortion foes view Roe as the Dred Scott decision of its time, and said after the debate that they saw the reference as a deliberate signal.

But Bush -- aware of the need to attract votes from women and moderates -- has stopped short of endorsing Roe's reversal. Two prominent abortion rights supporters, Schwarzenegger and former New York Mayor Rudolph W. Giuliani, were given prime speaking roles at last summer's Republican National Convention.

Bush told Danish television last week that although he believed abortion should be illegal except in cases of rape and incest or when a mother's life was at risk, he understood that the nation was not ready for Roe to go away. "I'm a realist as well," Bush said. "I mean, this is an issue that has polarized the American political society. And in order to get good policy in place that protects the life of a child, we're going to have to change hearts."

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