Bush Can’t Be Eager to See His Court Overrule Roe, Igniting ‘Pro-Choice’ Storm

If President-elect George Bush has a litmus test for Supreme Court nominees, then one thing is likely: Everything possible will be done to screen out anyone willing to overrule Roe vs. Wade. Why? The answer has nothing to do with ideology and everything to do with political pragmatism.

Bush would rather not play the political odds. He is a middle man in search of a middle position. He generally seeks out a centrist position even though, as in the abortion issue, the prevailing political winds carried him to a polar position. That helps to explain why he has vacillated on abortion and why, when pressed, he is likely to change his position once again until he settles near the center.

In 1980 the Bush of the Republican primaries found himself in the predictable center. He then opposed the most certain way to dismantle the Roe edifice--a constitutional amendment to outlaw abortion. For good measure, he noted his support for the equal-rights amendment. Still, he was quick to add, “I oppose abortion. I oppose federal funding of abortion.” Of course, there was the obligatory exception for “rape, incest, and the life of the mother.”

The transformation came when Ronald Reagan told the 1980 Republican convention that his running-mate would “enthusiastically support” the party platform, which called for a constitutional amendment to overturn Roe. And later, when pressed on the eve of the 1984 elections, Bush admitted, “I do favor a human-rights amendment.” He added the same exceptions for the amendment as he had earlier announced for abortion funding.

During the first presidential debate of 1988, Bush was caught off guard with a question concerning abortion penalties. The same man who seemed prepared to pass a law to ban abortions could say no more than “I haven’t sorted out the penalties.” When confronted with the possibility of women being branded criminals, Bush backed off and said that only the doctors, not the “victims,” should be prosecuted. He would be no more specific, his aides said, than to note that his position on abortion and penalties was “very, very, close” to that of the National Right to Life Committee. At that point James Baker stepped in and declared that Bush’s statements should “close the issue.”

If principle is the measure, then the “pro-life” community has reason to be concerned about Bush and what he will or won’t do to end the rule of Roe. During the last three elections the vice president depended on the committed and vocal vote of that cross-party segment of the nation. And as long as Roe remained on the books, Bush could avoid the otherwise actionable wrath of the clear majority of Americans who favor the 1973 decision.

Should the new President nominate an anti-Roe candidate to the high court, what will be the political consequences of that move if the precedent is overturned? This question takes on added significance with the advent of the French-manufactured pill, RU-486, which induces early abortion.

In all of this, Bush and his team of political middle men cannot afford to be oblivious to the obvious: Once Roe is overruled, “pro-choice” defenders will react with all the fervor of a martyr’s cause. Just as Roe was the catalyst of a “pro-life” movement, its demise could carry the “pro-choice” majority to the zenith of political power.

Then there is the social reality of Roe. In 1987 alone, almost 3 out of every 100 women between the ages of 15 and 44 had an abortion. This translates to more than 1.5 million abortions annually. If the protection of the federal Constitution vanishes, the political implications behind such figures are enormous--particularly if state criminal sanctions come into play.

Such scenarios are likely to move a cautious Bush. Rhetoric aside, he may indeed elect to “say no” to court appointments like Sen. Orrin G. Hatch (R-Utah), Solicitor General Charles Fried and U.S. Court of Appeals Judge John Noonan. Although all would be ably qualified, the problem for Bush is that they are likely to cast a vote against Roe. Placing pragmatism above extremism, Bush may feel compelled to find a candidate who will neither overrule Roe nor extend it. In other words, he needs a “safe-bet” status-quo selection.

Presidential elections demand certain concessions that cannot be honored. Once the calm has returned, however, a President is free, within some limits, to chart his own course. And in the case of George Bush, that course, at least on the abortion issue, is likely to be a steady centrist one. Ironically, if he veers too much from that path, he may face a “pro-choice” political firestorm in 1992.