April 19, 2007

High Court Decision Could Raise Abortion’s Profile in Campaign

Abortion Supreme Court
The Rev. Rob Schenck, president of the National Clergy Council, leads anti-abortion advocates in prayer in front of the Supreme Court April 18. (Photo: Jonathan Ernst/Getty Images)

by David Masci, Senior Research Fellow, Pew Forum on Religion & Public Life

Wednesday’s 5-4 Supreme Court decision upholding a federal law banning a controversial abortion procedure may dramatically raise abortion’s visibility in the presidential election campaign. The ruling, a victory for anti-abortion advocates, will almost certainly energize both sides in the abortion debate and prompt them to pressure presidential contenders to take clearer, less ambiguous positions.

Traditionally, abortion has not often been one of the top issues in national elections. For instance, a survey conducted last year by the Pew Research Center for the People & the Press found that abortion ranked at the very bottom of a list of 19 issues that voters deemed important. Education, the economy and national security issues topped the list.

But this decision – involving two cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood – could be a game changer. Already abortion-rights groups, such as Planned Parenthood and NARAL Pro-choice America, have set off alarm bells, warning that the ruling could presage the eventual demise of Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion. Likewise, the anti-abortion camp is already talking about the need to ensure that the decision is not an isolated incident but a step on the road to striking down Roe.

The major presidential candidates quickly responded to the news, with Republicans applauding the decision and Democrats condemning it. Up to now, some candidates have offered views that stray from absolute support or opposition to abortion.

Democratic frontrunner Hillary Clinton, for instance, favors abortion rights but has lately raised liberal eyebrows by calling abortion a tragic choice. Likewise, the GOP’s current favorite, former New York Mayor Rudolph Giuliani, has lately played down his past views supporting abortion rights, stating that he “hates” abortion. Both could now find themselves under increasing pressure. Clinton may see a need to eschew comments that might be interpreted as an effort to triangulate. Giuliani, on the other hand, could feel pressured to move even further toward the anti-abortion camp in order to appeal to social conservatives who make up a large part of the Republican Party base.

Other candidates who have publicly shifted their position on abortion may also encounter new challenges. For instance, former Massachusetts governor and GOP hopeful Mitt Romney, who recently declared that he had changed his mind on the issue and no longer supports abortion rights, might find his shift subject to greater media and voter scrutiny.

The Carhart and Planned Parenthood cases involve a number of different constitutional challenges to the Federal Partial Birth Abortion Ban Act of 2003, which prohibits doctors from performing what anti-abortion forces call partial-birth abortion and what abortion-rights advocates refer to as intact dilation and evacuation. By either name, it is a medical procedure used in a small number of late-term abortions. The decision itself gives anti-abortion forces the win they had been hoping for since President Bush appointed conservative justices John Roberts and Samuel Alito.

The court determined that even though prior cases, including Roe, had required laws restricting abortion to contain waivers in cases in which a mother’s health, as opposed to her life, was in danger, the partial-birth ban did not need such an exception. The act did not pose a significant health risk to women, Justice Anthony Kennedy wrote for the majority, because doctors contemplating using the procedure can employ alternative methods to terminate a pregnancy. In addition, Kennedy noted, the health exception is not needed in this case because the procedure at issue is rarely used. However, conservatives had hoped that the court would entirely eliminate the health exception, something Kennedy and the majority declined to do.

While the court addressed other issues in the decision, its ruling on the health exception was the most anticipated part of the majority opinion. Anti-abortion advocates have long argued that requiring a health exception, as has been the case until now, essentially eviscerates laws restricting abortion because a doctor can determine that almost anything, including emotional stress, will impact a woman’s health. Even though the court did not entirely eliminate the health exception, the majority probably made the waiver less meaningful by upholding a statute without it. Indeed, some state legislatures, especially in the more conservative South and Midwest, are likely to attempt to remove health waivers from some of their laws restricting abortion, hoping that courts will take their cue from Supreme Court’s decision and uphold these newly amended statutes.

Activity in state legislatures could help amplify the decision’s importance and raise the significance of the abortion issue in the presidential campaign. The real question is whether interest in the issue will be sustained through the November election. Abortion is still the 800-pound gorilla of the so-called “culture war,” which include debates on such issues as gay marriage and stem-cell research. Indeed, the Roe decision is generally thought to be a major factor in prompting conservative Christians to become more politically active. Yet, despite its political weight, abortion often remains quiescent, with many candidates seeking national office raising the issue infrequently, and shying away from taking a clear position on it when they do.

For instance, President Bush has tried, during past electoral campaigns, to reach out to both social conservatives and centrists, talking about his support for a “culture of life” on one hand, while also stating that “Roe v. Wade is the law of the land.” Senator John Kerry made a similar effort during the 2004 campaign, expressing his support for a woman’s right to choose an abortion, while at the same time stating that he believes that “life begins at conception.”

These efforts, at least in part, reflect the fact that no large and forceful majority resides on either side of the issue. For instance, an August 2006 poll by the Pew Research Center and the Pew Forum on Religion & Public Life showed that a bare majority of Americans, 51%, believe abortion should be available in all or most cases, compared with 46% who say it should be illegal in all or most cases. At the same time, two-thirds of Americans say that the nation needs to find a “middle ground” when it comes to abortion.

Navigating the space between voters seeking the middle ground on abortion and those more committed to one side or another has often been tough for candidates in national elections. If the fallout from Wednesday’s decision does end up resonating through the general election, some candidates could find that an already difficult task has become harder.