The landmark Supreme Court case Roe v. Wade has long been used as a political football, but abortion rights activists warn that it could soon be making a final play.
Sunday, January 22 marked the 39th anniversary of the decision, and more than ever the case’s fate could ride on the outcome of a presidential election. Republican presidential candidates have declared that they want to see the ruling reversed — and the ideological trajectory of the modern Supreme Court is conducive to their goals.
The case was decided 7-2, but the bench is notably more conservative today than 1973. Pro-choice advocates fear that replacing one of the four liberal-leaning justices with a conservative — not beyond the pale if a Republican defeats President Obama in November — could potentially result in a 5-4 decision to overturn the lynchpin pro-choice ruling, which would allow states to criminalize all abortions.
“We take nothing for granted,” Nancy Keenan, president of NARAL Pro-Choice America, told TPM. “Especially when you take a look at the composition of the court right now, and when you take a look at when people might retire from the court. It is something that is always on our minds, and that’s why we work so diligently to elect pro-choice candidates, in the Oval Office or in the United States Senate.”
All of the Republican 2012 candidates, she added, are “absolutely” a threat to Roe v. Wade.
The pro-choice community sees Justices Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito as dangerous to their cause, Keenan said. Justice Anthony Kennedy is currently seen as the swing vote as he has a mixed record on abortion cases. And two of the high court’s strong supporters of abortion rights — Justices Ruth Bader Ginsburg and Stephen Breyer — are 78 and 73, respectively.
Scalia in particular has been hypercritical of abortion rights laws and has persistently called on colleagues to overturn Roe v. Wade, which he says was improperly decided.
A Republican president would be all but certain, if given the chance, to appoint justices who are hostile to abortion rights. And the math favors the GOP to take back the Senate in 2012, which could help get those justices confirmed.
“Despite the fact that there is mainstream, bipartisan consensus on upholding Roe v. Wade, the leading GOP presidential candidates have pledged to appoint judges that would overturn Roe v. Wade,” Tait Sye, spokesperson for Planned Parenthood, told TPM.
The Supreme Court’s anti-abortion turn was widely noted after a 2007 case when Alito, who replaced Justice Sandra Day O’Connor the year before, became the fifth vote to outlaw what pro-lifers call partial birth abortions. The decision reversed a 5-4 ruling in 2000 — which O’Connor voted on the winning side of — that struck down a Nebraska law criminalizing that type of procedure.
“Alito replaced O’Connor and that was the deciding factor,” Keenan said. “That is the consequence of putting people in the Supreme Court who don’t share our values.”
For now, the prospect of Roe v. Wade being overturned is just one of many concerns for pro-choice advocates. The Republican resurgence of 2010 saw widespread anti-abortion legislation pass in various states last year — along with a congressional GOP push to scale back abortion nationally. Keenan and Planned Parenthood president Cecile Richards each dubbed 2011 the year of the “war on women.”
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.