Some conservative lawyers agree that a McCain victory would only set the stage for overruling Roe. Regardless of who wins the White House, Democrats are likely to maintain a majority in the Senate, and they could block a staunchly conservative nominee to the high court.
"I think the consensus is Roe will fall slowly and incrementally, not in one decision," says Wendy Long, a former Thomas clerk and counsel to the Judicial Confirmation Network. "And the day after Roe is reversed, abortion still will not be illegal," she said, since many states would not outlaw it.
M. Edward Whelan, a former Scalia clerk and president of the Ethics and Public Policy Center, believes it would take more than one new justice to cause a dramatic shift in abortion law.
"I would say if we get a President McCain and he gets several appointments, there is a prospect of overturning Roe vs. Wade and returning abortion policy to the democratic process," he said.
Fenn, the Democratic strategist, said that prospect should be enough to energize supporters of abortion rights.
"If you are pro-choice," he said, "the stakes are pretty obvious."
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david.savage@latimes.com
