Abortion issue looms over Supreme Court choice

A full-scale battle on Capitol Hill over the next Supreme Court nominee could still be months away, but skirmishes have been taking place all year.

Conservative activists have brought the most explosive weapon in their arsenal -- the issue of abortion rights -- to bear against a trio of President Obama’s nominees for other posts, offering a likely preview of what to expect when Obama’s choice to replace retiring Justice David H. Souter comes before the Senate Judiciary Committee.

Antiabortion groups opposed Health and Human Services Secretary Kathleen Sebelius and two Justice Department nominees -- Elena Kagan and Dawn Johnsen -- with varying degrees of success.

Sebelius was confirmed last week after a lengthy delay. Even as concerns over swine flu were escalating nationally Tuesday, Republican senators used much of the floor debate to link the then-Kansas governor to a Wichita doctor who performs late-term abortions.


Kagan, nominated to be solicitor general, the government’s top lawyer at the Supreme Court, barely cleared the 60-vote threshold needed to avoid a filibuster in the Senate. Groups opposed to abortion rights had said Kagan supports public funding for abortions and would not defend restrictions such as parental notification statutes.

Johnsen’s nomination to lead the Justice Department’s Office of Legal Counsel remains in limbo, largely because of her background as a lawyer for NARAL Pro-Choice America, the abortion rights group.

Douglas Johnson, counsel for the group National Right to Life, calls her a “radical” and an “ideologue.”

The nomination “holds significant implications for our next Supreme Court battle,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, an antiabortion rights group.

Johnsen’s supporters say her work is being distorted.

“I find the objections to her quite incredible,” said Douglas Kmiec, a Pepperdine University law professor who headed the Office of Legal Counsel under President Reagan. Johnsen, who worked in the office during President Clinton’s tenure, is a sharp critic of Bush-era legal memos justifying harsh interrogation tactics used on terrorism suspects.

“She brought care, precision and objectivity to the job. That’s what was missing in the office at the time of the torture debate,” Kmiec said.

But the campaign against Johnsen has yielded results. For example, Sen. Ben Nelson (D-Neb.) signaled his opposition recently.


Clay Westrope, a spokesman for Nelson, said the senator “believes that the Office of Legal Counsel is a position in which personal views can have an impact and is concerned about her outspoken pro-choice views on abortion.”

Much of the heat on Johnsen stems from a brief she wrote 20 years ago in an abortion rights case. In one footnote, she wrote that “statutes that curtail [a woman’s] abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment.”

Her critics say Johnsen was comparing pregnancy to slavery. During her confirmation hearing, Johnsen said she was drawing no such analogy.

The path to Johnsen’s confirmation remains hazy. Sen. Richard G. Lugar (R-Ind.) said last week that he would support her. Other moderate senators remain tight-lipped, and Senate leaders have yet to indicate when a floor vote might be taken.


Antiabortion groups have been testing their political viability since Obama took office, and they say the difficulties encountered by Johnsen and others show they retain the power to derail the president’s agenda, despite large Democratic majorities in Congress.

“This new administration and the congressional majority may support radical abortion rights, but the American people as a whole do not,” said Charmaine Yoest, president of Americans United for Life.

After the news of Souter’s retirement, NARAL President Nancy Keenan said she expected abortion rights opponents to oppose Obama’s choice for the high court.

“Without a doubt, opponents of women’s freedom and privacy will use a vacancy on the court as an opportunity to further their attacks on nominees who have taken pro-choice positions, " Keenan said.



David G. Savage of the Washington bureau contributed to this report.