Social conservatives relish the idea that Justice Sandra Day O’Connor’s resignation from the Supreme Court has moved them one step closer to their goal of outlawing abortion. Liberals are vowing to fight any potential successor who would, unlike O’Connor, favor overturning Roe vs. Wade, the 1973 ruling that affirmed a woman’s right to end a pregnancy.
But the political irony that few on either side readily acknowledge -- but many are pondering -- is that Roe’s demise could transform American elections by crippling the conservative political majority that opposes abortion and by giving new life to hobbled liberals who support the ruling’s preservation.
That the 32-year-old landmark decision could be overturned seems a distant possibility. Justices who believe the ruling should stand hold five seats on the nine-member court, even with O’Connor gone.
But the prospect of progress toward overturning Roe -- and the realization that President Bush could have at least two chances to make transformative appointments to the court -- has exposed a disagreement between conservatives who want abortion criminalized and pragmatic Republicans concerned that shifting the issue from the courts to the ballot box would lead to massive GOP losses.
Of particular concern is the party’s fate in closely contested battlegrounds such as Ohio, Florida and Michigan, where the resurgence of the abortion issue could alienate moderate voters who have helped Republicans make gains on all levels.
“Smart strategists inside the party don’t want the status quo changed,” said Tony Fabrizio, chief pollster for the 1996 Republican presidential campaign of Bob Dole.
“This may cause Republicans like Arnold Schwarzenegger -- who are strongly committed to being pro-choice -- to flip or to push for a third-party movement,” he added. “If they did outlaw it, it would ultimately turn the Republican Party into a theocratic-based party rather than an ideological party, and the party would necessarily start shedding people.”
Strategists worry that overturning Roe would make abortion a top-tier political issue again, galvanizing liberals and moderates who have long assumed the issue was settled. At the same time, it would eliminate a major organizing principle of the evangelical movement that gained prominence in last year’s elections. And Republican candidates, who have long sidestepped the issue by assuring moderate voters that judges had the final say on abortion, would suddenly be forced to say how they would vote on a woman’s right to choose.
“A candidate could no longer say, ‘I’m running for state representative, not the Supreme Court,’ ” said David Johnson, former director of the Republican Party of Florida, who has advised GOP campaigns, including that of John Thune, who last year defeated the Senate’s top Democrat, Tom Daschle, in South Dakota. “That response would no longer be valid because their vote would matter.”
Few experts believe O’Connor’s resignation would swing the court on abortion, since five justices -- Anthony M. Kennedy, John Paul Stevens, Ruth Bader Ginsberg, David H. Souter and Stephen G. Breyer -- have indicated that they would not vote to overturn Roe. But social conservatives say O’Connor’s departure offers the first chance in decades to reshape the court’s ideological makeup. Kennedy is considered a swing vote, and Stevens’ age -- he is 85 -- gives conservatives hope that the end of Roe is close at hand.
For that to happen, however, Bush would have to comply with conservative demands to appoint strict constructionists with the judicial philosophies of Justices Clarence Thomas and Antonin Scalia, both opponents of Roe.
As a candidate, Bush sent plenty of signals that he agreed with that approach, even calling the two men examples of his ideal nominee. During his reelection campaign last fall, the president referred repeatedly to a “culture of life,” and he thrilled religious conservatives during a campaign debate when he described the 1857 Dred Scott decision affirming slavery as an example of a bad court opinion. Abortion foes view Roe as the Dred Scott decision of its time, and said after the debate that they saw the reference as a deliberate signal.
But Bush -- aware of the need to attract votes from women and moderates -- has stopped short of endorsing Roe’s reversal. Two prominent abortion rights supporters, Schwarzenegger and former New York Mayor Rudolph W. Giuliani, were given prime speaking roles at last summer’s Republican National Convention.
Bush told Danish television last week that although he believed abortion should be illegal except in cases of rape and incest or when a mother’s life was at risk, he understood that the nation was not ready for Roe to go away. “I’m a realist as well,” Bush said. “I mean, this is an issue that has polarized the American political society. And in order to get good policy in place that protects the life of a child, we’re going to have to change hearts.”
Polls confirm Bush’s assessment. A May survey of registered voters by Quinnipiac University in Hamden, Conn., found that 55% believed abortion should be legal in all or most cases -- including 6 in 10 independents and more than a third of Republicans.
Another May survey, conducted for NBC News and the Wall Street Journal, found that 55% of adults believed the matter should be left up to a woman and her doctor. The margins of error for each poll were 3 and 3.1 percentage points, respectively.
But social conservatives mobilized by the prospect of Bush transforming the court with at least two new justices turned out in big numbers to help reelect the president. The turnout underscored the political value to the GOP of Roe as a motivating force for evangelical voters. The question facing Bush, analysts said, is how long the religious base would tolerate the GOP if the chance to overturn Roe is lost.
“Bush is in a real dilemma,” said John Seery, a professor of politics at Pomona College, who has written about the politics of abortion. “The true-believer, pro-life person wants Roe v. Wade to be overturned, and the politics are secondary. But to political strategists who are concerned about the future of the Republican Party, this would be almost devastating.”
Still, while strategists gauge the fallout, activists pushing the debate on each side show no signs of altering their positions or tactics for the sake of the electoral college map.
Ralph Neas, president of People for the American Way, which has led the opposition to some of Bush’s judicial nominees, said it was “pure poppycock” to assume that a more conservative court could hurt Republicans.
The president, Neas said, will name justices who would carry out the conservative movement’s long-held goal of rolling back New Deal philosophies such as Social Security that the modern-day Supreme Court has upheld. He said a court that followed the views of Thomas and Scalia, rather than O’Connor’s, would be expected to overturn about 100 rulings affecting not only abortion but civil rights, the environment and privacy.
“The architects of this strategy to redefine government and the courts, I think, are willing to suffer some short-term political costs as long as, in the long term, they control the law of the land for the next several decades,” Neas said.
Evangelical leaders, who were quick last week to remind Bush of his campaign promises to transform the court, are looking ahead to the day Roe is overturned.
Tony Perkins, president of the Family Research Council, a leading evangelical advocacy group, told reporters last month that the change would come -- albeit slowly.
“It’s going to be a process,” Perkins said. “It’s not going to happen overnight. It could take eight years. It could take a while.”
He predicted states would begin to enact more restrictions on abortion, and that ultimately a conservative Supreme Court would reverse Roe vs. Wade.
Kenneth L. Connor, a former head of the Family Research Council who helped engineer congressional efforts this year to intervene in the Terri Schiavo right-to-die case, said overturning Roe would create political shockwaves that might force both sides to reach a consensus.
But Connor, a former candidate for governor in Florida, said many Republican politicians had no desire to see Roe go away.
“The current situation allows them to furrow their brow, ring their hands, gnash their teeth but not do a dadgum thing about it,” he said. “If the court were to put the decision in their hands, they would be mortified.”
Ann Stone, chairman of Republicans for Choice, said the best evidence of all that the GOP establishment benefited from maintaining Roe was the lack of any push by the party’s majority leadership in Congress for a constitutional ban on abortion.
“If they thought it was a winning issue, they would have had a vote,” she said. “This could wind up being a case of getting what you wish for and then regretting it.”
Times researcher Benjamin Weyl contributed to this report.