Numbers Game

By Russell Shaw
Herald Columnist
(From the issue of 11/27/03)

"O’Connor has her mind made up." The speaker was a seriously pro-life member of Congress. The O’Connor of whom he spoke is Supreme Court Associate Justice Sandra Day O’Connor. And the matter about which her mind is, as the congressperson assured me, firmly made up is that the new federal law banning partial-birth abortion must be overturned.

If that is so — and I don’t doubt it — it’s deeply disturbing news for pro-lifers.

It underlines the prospect that when the time for voting comes, Justice O’Connor will line up with four other justices who certainly are opposed to the law — Stevens, Souter, Ginsburg and Breyer — to produce a 5-4 decision striking it down.

But, the pro-life congressperson insisted, there also is a possibility that we’ll see a very different result. It depends on when the court decides the case and whether there have been changes in its membership by then.

Leaving aside mortality, the chances of such changes occurring before the 2004 elections are somewhere between minuscule and nil. Justice O’Connor, 73, and the other likely candidates for retirement — Stevens, 83, and Chief Justice Rehnquist, 79 — are likely to stay until after next November.

And then? If Rehnquist, a reliable pro-life vote, steps down and is replaced by someone who thinks as he does, the result will be a draw as far as the partial-abortion ban is concerned. The five-member majority against will stand.

But if Rehnquist is joined in retirement by Stevens and O’Connor, both of them reliable votes for abortion, it will be a different story. Supposing only two of these three were replaced by justices leaning in the pro-life direction, the court’s new lineup on the partial-birth ban would very likely be five votes for, four against.

These numbers games may make dry reading, but nothing better illustrates the stakes in the ongoing battle taking place in the Senate over judicial nominations. Beyond the politics and the posturing on both sides, the underlying issue is the future direction of the federal courts, with the Supreme Court the biggest prize of all.

In a news conference a few days before signing the partial-birth abortion ban into law, President Bush said he didn’t think "the culture has changed to the extent" that the public or the Congress would support a bill banning abortion entirely. Undoubtedly he was right. Incrementalism is the name of the game for the foreseeable future.

It often is said that a cultural consensus against abortion must precede enactment of laws criminalizing the practice. But that fatuous argument — memorably advanced by Mario Cuomo, with the help of dissenting theologians, when he was governor of New York — is no more than a piece of shrewd sophistry.

The sophistry becomes clear when one makes the experiment of applying the same argument to something like tax evasion.

Consensus or no consensus, in the absence of laws that penalize evading taxes, many people would do their best to evade them, safe in the knowledge that nothing would happen to them if they got caught. This is to say that the very absence of a law punishing tax evasion would inhibit the emergence of a cultural consensus.

It’s much the same with abortion. A consensus against is certainly desirable — and laws are needed to nurture it. Since a total ban isn’t feasible now, laws restricting it as much as possible in present circumstances are doubly necessary. This is what makes the new ban on partial-birth abortion — and whether Justice O’Connor is around when it comes before the Supreme Court — so important.

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