The Front-Runners on Roe

What Bush’s shortlist thinks about abortion.

Democrats and Republicans are already clashing over what senators should be allowed to ask Bush’s Supreme Court nominee about. “All questions are legitimate,” Sen. Charles Schumer of New York, a Democratic member of the judiciary committee, told the New York Times. “They are going to try to get away with the idea that we’re not going to know their views. But that’s not going to work this time.” Sen. Jeff Sessions, an Alabama Republican who also sits on the judiciary committee, responded, “You cannot ask a judge to prejudge a specific matter.”

But the Democrats won’t have to prod to find out the views of most of Bush’s short-listed candidates on sharply contested areas of law. On abortion, affirmative action, separation of church and state, and the president’s authority to detain terrorist suspects indefinitely—all areas in which Justice Sandra Day O’Connor cast a crucial vote for the liberal position in the past several years—many of the short-listers have expressed themselves forcefully. Here’s a rundown of what we already know about what they think, beginning with abortion and moving on to other issues later this week.

What’s at stake: Not Roe v. Wade, or at least not directly. In a 1992 centrist opinion written with justices Anthony Kennedy and David Souter, O’Connor voted in Planned Parenthood v. Casey to uphold the basic constitutional right to abortion. Replacing O’Connor with an anti-Roe vote won’t jeopardize the majority on the court that supports the decision.

But that doesn’t mean that the law on abortion won’t change. In a 5-4 vote in 2000 in Stenberg v. Carhart, O’Connor joined with the court’s liberal-moderates to strike down a Nebraska ban on late-term “partial-birth” abortion. That case is the court’s most recent application of an O’Connor-crafted test that allows states to regulate abortion as long as they don’t put an “undue burden” on a woman exercising her right to it.

Next term, the court will hear the case Ayotte v. Planned Parenthood, a challenge to a New Hampshire law that requires teens under the age of 18 to tell their parents before they can have an abortion, without providing an exception when a girl’s health is at risk. Also likely to come before the court is the partial-birth abortion ban that Congress passed in 2003, which three district courts have already found unconstitutional. And if Congress passes a law making it a crime to take a girl under the age of 18 across state lines for an abortion without her parents’ permission—the House approved such a bill in April; the Senate hasn’t voted on one yet—the court would eventually have to tackle that as well. Absent O’Connor, whose vote in Stenberg suggests that she probably would have struck down the New Hampshire and federal partial-birth bans, the court could well reach different conclusions than it would have otherwise about whether such restrictions constitute an “undue burden.” And it’s possible—though less likely as long as Kennedy, Souter, and the three liberal justices who voted in the majority in Casey remain on the court—that the undue-burden test itself could be in jeopardy.

John Roberts

The hard-liners: In 1991, as deputy solicitor general for President George H.W. Bush, John Roberts (now a judge on the U.S. Court of Appeals for the D.C. Circuit) co-wrote the administration’s brief in Rust v. Sullivan. Roberts’ position, which was adopted by the Supreme Court, barred doctors and clinics receiving federal funds from discussing the possibility of abortion with their patients or referring them to family-planning clinics that do the procedure. The brief said on behalf of the administration, “We continue to believe that Roe was wrongly decided and should be overruled.” Roberts could try to distance himself from this stance by arguing that he was merely stating his client’s position, but the stark language in the brief could be hard to disown.

Michael McConnell

In 1996, when he was a law professor, Michael McConnell (now a judge on the U.S. Court of Appeals for the 10th Circuit) signed a statement supporting a constitutional amendment to ban abortion. “Abortion kills 1.5 million innocent human beings in America every year,” the statement read. “We believe that the abortion license is a critical factor in America’s virtue deficit.”

Emilio Garza

In 1992 and 1997, Judge Emilio Garza (U.S. Court of Appeals for the 5th Circuit) struck down two Louisiana statutes for restricting abortion more tightly than Roe and Casey allow. But in each case, Garza wrote a concurrence stating his disagreement with those Supreme Court decisions. “I would allow the people of the State of Louisiana to decide this issue for themselves,” he wrote in the 1992 case. In 1997, he called Roe and Casey“inimical to the Constitution.”

In 2004, Judge Edith Jones (U.S. Court of Appeals for the 5th Circuit) agreed with a decision to reject a suit brought by Norma McCorvey, the original plaintiff in Roe, to reverse the Supreme Court’s 1973 decision. (McCorvey had undergone a change of heart in the meantime and become a pro-life activist.) In a concurrence, Jones agreed that the 5th Circuit had no choice but to dismiss McCorvey’s suit as moot. But that result was “ironic,” Jones said, given evidence McCorvey presented about the “long-term emotional damage” suffered by women who have abortions and about the early stages at which “a baby develops sensitivity to external stimuli and to pain.” Jones concluded, “[T]he perverse result of the Court’s having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter.”

Samuel Alito

The regulators: In 1991, Judge Samuel Alito (U.S. Court of Appeals for the 3rd Circuit) dissented from the lower-court decision—affirmed by the Supreme Court in Casey—that struck down a Pennsylvania law that would have required women to inform their husbands before getting abortions. Alito read the Supreme Court’s earlier decisions as holding that an abortion regulation did not pose an undue burden unless it banned abortion, gave another person a veto over a woman’s choice, or had the “practical effect of imposing severe limitations.” A law that had a “heavy impact on a few women” should be upheld, Alito said.

Michael Luttig

In 1998, Michael Luttig (U.S. Court of Appeals for the 4th Circuit) granted a stay that had the effect of allowing a Virginia ban against partial-birth abortion to go into effect. After the Supreme Court struck down Nebraska’s parallel law in Stenberg v. Carhart, Luttig reversed his earlier decision and lifted the stay, which had the effect of throwing out the Virginia restrictions. At that point, he explained that at the time of his initial decision to let the Virginia ban stand, he understood Casey to be “a decision of super-stare decisis”—meaning super respect for precedent—“with respect to a woman’s fundamental right to choose.” But he also believed that the court would uphold the partial-birth abortion bans, or at least defer to Virginia’s interpretation limiting the reach of its statute.

Alberto Gonzales

The possible moderate: In 2000, as a judge on the Texas Supreme Court, Alberto Gonzales (now U.S. Attorney General) took part in two decisions that applied a state law allowing a teenage girl to have an abortion without notifying her parents if she could prove to a judge that she was “mature and sufficiently well informed.” In one of the cases, Gonzales voted to allow a 17-year-old girl to have an abortion under the statute, though he was careful to say that he was simply following the directive of the legislature. “While the ramifications of such a law and the results of the Court’s decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view,” Gonzales wrote. In the second case, Gonzales held that the teenager petitioning the court had not shown that she had “thoughtfully considered the alternatives” to abortion, but sent her back to the trial court for another chance.

Edith Brown Clement

The question marks: There’s little in the judicial opinions of short-listers Judge Edith Brown Clement (U.S. Court of Appeals for the 5th Circuit) and Judge J. Harvie Wilkinson (U.S. Court of Appeals for the 4th Circuit) to indicate their positions on abortion.

Implications: You can never say for sure how someone will vote when they get to the Supreme Court—that’s the beauty of judicial independence and life tenure. But based on their past statements and decisions, Roberts, McConnell, Garza, and Jones look like good bets to vote to regulate abortion more tightly and, if they get the chance someday, perhaps to overturn Roe v. Wade. Alito would probably do the same. How far Luttig would go is less clear—his statement of respect for Casey is clinical and drained of emotion, which makes it harder to tell. Gonzales’ opinions in the Texas cases suggest that he doesn’t much like the idea of teenagers having abortions without telling their parents. But in those cases and others, he has been inclined to respect previous Supreme Court decisions. That makes him the potential nominee most likely to follow O’Connor when it comes to Roe—and it explains why religious conservatives are so hostile to his potential nomination.