Senate Panel Girds for Abortion Fight

“Jane Roe,” the plaintiff in the landmark Roe vs. Wade Supreme Court decision, has told the story many times: As a single mother struggling with emotional problems and alcohol and drug abuse, she agreed to play a historic role in the case that legalized abortion 32 years ago. Then, following her conversion to Christianity in 1995, she began to speak out against abortion.

But when Roe, whose real name is Norma McCorvey, repeated her story Thursday before members of a subcommittee of the Senate Judiciary Committee, the event was fraught with political symbolism.

The Judiciary panel will play a central role in the potentially titanic battle over the next Supreme Court nominee -- a struggle that could begin as early as next week when the high court ends its term. Washington is rife with speculation that Chief Justice William H. Rehnquist, who has cancer, may use the occasion to step down.

And the chairman of the Judiciary subcommittee on the Constitution, which summoned McCorvey to testify, is Sam Brownback of Kansas, a prominent evangelical conservative who often is mentioned as a possible candidate for the GOP presidential nomination in 2008.

In part because the chairman of the full committee, Republican Arlen Specter of Pennsylvania, personally supports abortion rights -- though he has pledged not to impose his views on the judicial confirmation process -- conservatives considered it important to bring the abortion issue into the spotlight even before a vacancy on the court has occurred.

In a preview of the arguments likely to be debated when the Senate takes up a Supreme Court nominee, Brownback led McCorvey and other witnesses through questions about when life begins and whether the justices erred in holding that abortion was protected by a woman’s right to privacy.

“Roe was a mistake -- a very, very costly one,” said Brownback. “Forty million abortions is way too many.”

In addition to McCorvey, Brownback summoned a panel of legal experts -- two abortion opponents, two advocates of abortion rights -- to discuss his contention that legal scholars are beginning to coalesce around a consensus that the legal underpinning of the Roe vs. Wade decision, the constitutional right to privacy, was flawed.

In the view of conservatives, the Roe decision not only legalized abortion but also infected much of the federal court system with judicial activism.

“Roe is the Dred Scott of our age,” said Edward Whelan, president of the Ethics and Public Policy Center, a Washington think tank, referring to the Supreme Court decision that upheld slavery and was later discredited. “Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government.”

Arguing that the court had overstepped its bounds and engaged in judicial legislating, Whelan called the case “a lawless power grab by the Supreme Court, an unconstitutional act of aggression.”

Judicial activism is likely to be one of the themes of the Senate’s consideration of any Supreme Court nomination, and Brownback asked witnesses what they thought would happen if Roe vs. Wade were overturned and the states regulated abortion.

Karen O’Connor, a lawyer and professor of government at American University, expressed concern about the impact on women’s health if abortion returned “to the back alleys” and about what kinds of limits states might impose.

Brownback asked the legal experts to address the issue of when life began, in part to explore the possibility that states could outlaw abortion on grounds that it constituted the taking of a life. Several witnesses said that, compared to the biological question of when life began, the legal issue was relatively clear:

“States cannot give rights [to the unborn] that trump the rights of those already protected,” said R. Alta Charo, a professor of law and bioethics at the University of Wisconsin Law School.

Brownback applauded what he called the heartfelt passions of those who supported abortion rights, praising, for example, Sen. Russell D. Feingold (D-Wis.) as a fervent opponent of the death penalty, which Brownback called part of the debate “about the culture of life.”

Noting estimates that more than 5,000 women a year had died as a result of complications from botched abortions in the years leading up to Roe, Feingold said, “We must not turn back the clock.”

He called abortion “an extremely difficult issue and one on which good and sincere people often disagree.”