Fate of Ban Rests with Justice O'Connor

By Russell Shaw
Herald Columnist
(From the issue of 6/17/04)

Looking down the road a year or two, it appears that the fate of the federal law banning partial-birth abortion may rest in the hands of Supreme Court Associate Justice Sandra Day O'Connor. O'Connor has occupied the court's catbird seat many times on many issues, and pro-lifers cringe at the prospect of her occupying it yet again where the partial-birth abortion law is concerned.

"O'Connor's mind is made up," a prominent pro-life member of Congress grimly remarked to me months back as the partial-birth ban was moving toward enactment. He didn't mean made up in favor of the ban either. He meant O'Connor was an all-but-certain vote against.

Add O'Connor to four rock-solid pro-abortion votes on the court as presently constituted — Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer — and you get the magic number five, which is what a Supreme Court majority requires.

There is little doubt that the partial-birth abortion issue is headed to the Supreme Court again. On June 1 in San Francisco, U.S. District Judge Phyllis J. Hamilton overturned the federal law which Congress passed and President Bush signed late last year. The case was brought by Planned Parenthood. Challenges also are pending in courts in Nebraska and New York. This path leads inexorably to the U.S. high court.

So what about Justice O'Connor? Back in June 2002, she was part of the one-vote majority that overturned Nebraska's partial-birth ban, 5-4.

She also was part of the majority in 1992 in Planned Parenthood v. Casey — a decision that dashed the hopes of pro-lifers for a ruling which would reverse or at least modify the Supreme Court's legalization of abortion. O'Connor joined Souter and Anthony Kennedy in a notorious plurality opinion, full of hot air and moonbeams, which affirmed everybody's fundamental right to define the meaning of existence. (Try that in an antitrust case.)

In short, where abortion is concerned, O'Connor is bad news. The best that can be said of her from the pro-life point of view is that her well-earned reputation as a swing vote offers a thin smidgen of hope.

In reality, though, the real hope for a favorable outcome on the partial-birth law lies in the possibility that, by the time the latest round in the battle reaches the Supreme Court, its membership will have significantly changed.

Whether or not O'Connor remains, it is commonly thought that several of the other justices are awaiting the outcome of the presidential election to decide whether to stay or leave. Victory by the candidate considered likely to appoint successors ideologically resembling oneself would be an incentive to step down, victory by his opponent a reason to hang on. In a couple of instances, furthermore, age, health, and mortality could render all such calculations moot.

History suggests that the naming of Supreme Court justices involves more than a small element of uncertainty. Consider that as a member of the high court O'Connor herself is part of Ronald Reagan’s legacy, a pro-life president who blundered badly in selecting her.

The split between the candidates is clear. Sen. John Kerry (D-MA), the presumptive Democratic candidate for president, says he will name only pro-choice judges to the Supreme Court. He opposed the partial-birth ban. President Bush leans toward pro-life jurists but has been stymied by the Senate’s Democratic minority in attempting to place some deemed too outspoken on the issue on lower federal courts. Bush signed the partial-birth ban, twice vetoed by Bill Clinton, into law.

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