By Billy House
Republic Washington Bureau
Jan. 22, 2003
WASHINGTON - Thirty years after Roe vs. Wade gave American women the right to
have an abortion, the Supreme Court stands on the brink of changes to its makeup
that could affect that decision.
At the center of these changes could be Sandra Day O'Connor, an Arizonan regarded as a possible successor to Chief Justice William Rehnquist.
But elevating the first woman on the court to the first female chief justice would not mean any guarantees as to the future of Roe, legal scholars and practitioners say.
"Sandra Day O'Connor, in some ways, personifies the ambivalent status of Roe vs. Wade before the court," said Jonathan Turley, who teaches constitutional law at George Washington University here.
"It is because of O'Connor that we are no longer discussing the potential demise of Roe vs. Wade as much as its dilution," he said.
Lost in speculation about how President Bush might seize upon a Rehnquist retirement and other potential court openings to fill the court with more-conservative justices, is that Roe is the law of the land.
But while Roe remains in place, both sides of the abortion issue say it is a shadow of its former self.
Decision watered down
This "ambivalent status" of Roe before the court, say abortion-rights supporters and foes alike, can be traced largely to a decision written by O'Connor with two other justices in 1992's Planned Parenthood of Southeastern Pennsylvania vs.Casey. That case reaffirmed Roe while sharply restricting its protections for abortion.
"One of our worst fears was not realized, because the court seemed poised (as signaled by earlier rulings) to overrule Roe," said Elizabeth Cavendish in crediting O'Connor with helping to save the core of Roe.
But Cavendish, legal director of the National Abortion and Reproductive Rights Action League Pro-Choice America, said abortion opponents and state legislatures have seized on O'Connor's holding in Casey to introduce and enact "a cascade" of new abortion statutes. Those statutes, she said, are loaded with many time, place and manner restrictions; consent forms and waiting periods; and even bans on procedures.
"It (Casey) lowered the bar on abortion regulations," said Charles Kesler, a professor of government at Claremont-McKenna College in California, and senior fellow at the Claremont Institute, a conservative think tank.
"Do I blame O'Connor? Blame is not the right word for me," said Sarah Weddington, the lawyer who successfully argued Roe before the Supreme Court. "But there should be a recognition that she was clearly the leader of that opinion. For the first time, the Supreme Court essentially waved the 'go!' flag for people to try to find ways to make abortion more difficult for people to get."
For these reasons, Cavendish said, her group has mixed feelings about O'Connor's potential elevation to chief justice. Weddington does, too.
"I think it's premature to say how we would feel about her becoming chief justice," Cavendish said. "I would hope that if she does, that she would be concerned that her legacy not be the overturning of Roe."
Said Weddington: "She is not what I'd really like to see. But given the political times, she may be the best choice. I don't think she would have a role in trying to overturn Roe vs. Wade."
Time right for Rehnquist
Rehnquist, 78, himself a former Arizonan, has not publicly discussed any plans to retire soon. But many court observers believe his age and the current political climate make 2003 the right time to leave. They note there is a Republican president, no presidential election this year and a GOP-controlled Senate, which controls the judicial confirmation process.
The White House also has acknowledged it is considering possible replacements.
An often-discussed scenario is that O'Connor, 72, could be elevated to chief justice should Rehnquist retire, and Bush would nominate White House counsel Alberto Gonzalez to replace O'Connor as an associate justice. This would enable Bush to claim two firsts - naming a woman as chief justice and appointing a Hispanic to the court.
But if O'Connor's age, her health or positions on issues make her unappealing as a chief justice to Bush, she might leave the court, too.
O'Connor's vote crucial
Weddington said she believes three of the sitting justices appear ready to overturn Roe - Rehnquist, Antonin Scalia and Clarence Thomas. Three others are seen as wanting to leave Roe alone - Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens. O'Connor is viewed as the most important of the three remaining justices in the middle (with David Souter and Anthony Kennedy), whose shifting views determine the outcome of abortion-related cases.
For abortion-rights activists like Weddington, replacing Rehnquist's seat on the court with another conservative similarly opposed to abortion would amount to a draw. But if both O'Connor and Stevens, 80, leave to be replaced by those who oppose abortion, a major shift in the court's "ambivalence" on the issue is possible.
O'Connor, through her office, declined to be interviewed.
O'Connor's habit of staking out middle-ground or centrist views on social issues like abortion may have established her as a critical swing vote. But it also may be the undoing of her hopes to succeed Rehnquist.
"She cut her teeth in politics, not in the courts. In Arizona, she was best known as a state legislator," Turley said. "She has proven very political in how she has dealt with colleagues and crafted decisions to carefully preserve her swing-vote position."
But that approach also leaves both sides on the abortion debate unable to predict what she, as a chief justice, might do. Kesler said there also are perceptions she has been opportunistic, lacks an intellectual honesty or depth, and is inconsistent. While liberals are suspicious of her, many conservatives remain upset that in Casey she upheld the core of Roe. Many would prefer to see Bush elevate Scalia, even if that means a bitter confirmation process .
'Not having a principle'
"Her dilemma is that she's made a principle of not having a principle," Kesler said. "She has played up her freedom as a judge to take pragmatic positions on these questions, which seem to demand principled positions."
James Underwood, a law professor at the University of South Carolina, said he thinks O'Connor would be a good chief justice, particularly for this time in history.
"As a kind of centrist, albeit a more conservative one, she would not be marching to any zealot's fanfare," Underwood said.
Reach the reporter at billy.house@arizonarepublic.com or (202) 906-8136.
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