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GOP Should Hope Supreme Court Upholds Roe Ruling

By Mort Kondracke

The Supreme Court is highly unlikely to take South Dakota's bait and overturn the 1973 Roe v. Wade abortion decision. And for that, Republicans should thank their lucky stars.

But South Dakota's "direct frontal assault" on Roe - to use Gov. Michael Rounds' (R) description - may well elevate abortion to the top of the nation's political agenda for the 2008 presidential election, or even earlier if President Bush gets the opportunity to nominate another Supreme Court justice.

The issue could be especially problematic for Sen. John McCain (Ariz.), currently the GOP favorite among moderates and the media. On CBS' "The Early Show" on Jan. 25, McCain said, "I've never agreed with Roe v. Wade" and added that "it wouldn't bother me any" if it were overturned.

At a minimum, South Dakota gives the pro-choice movement a graphic example of what life might be like in a large swath of America if Roe were ever overturned.

South Dakota has just one abortion clinic, in Sioux Falls, open only one day a week. No doctor from the state dares perform an abortion, so outsiders fly in, usually from Minnesota. Women have to travel up to 350 miles to get an abortion. And on top of such obstacles, the state has now passed a law to ban the procedure entirely, including in cases of rape and incest, except to save a mother's life. The law is likely to be challenged in court before it can take effect.

If Roe were overturned - wiping away 30-plus years of national legal protection for the procedure and unleashing epic battles at the state level - it could affect the GOP in much the same way as the Democratic Party's embrace of civil rights in the 1960s, a move that caused the party to lose the South.

Or, as one pro-choice Republican House Member told me, "We'd be blown away in the suburbs, and you wouldn't see another Republican president for 20 years."

A pro-choice colleague of his added, "If you take away a right that people have taken for granted, they will rise to defend it. A sleeping giant would be aroused." Polls overwhelmingly indicate that Americans favor retention of Roe, even if they also support limitations on abortion.

A Gallup Poll in January found that Americans oppose overturning the decision by 66 percent to 25 percent. The poll was taken when now-Justice Samuel Alito's Supreme Court nomination was before the Senate. By 56 percent to 34 percent, respondents said they'd favor his rejection if they became convinced he would vote to overturn Roe.

The same poll showed that only 38 percent of American adults favor making abortion laws stricter, while 20 percent want them made less strict, and 39 percent favor retaining current laws. Fifty-three percent told Gallup they consider themselves "pro-choice," while 42 percent said they are "pro-life."

An ABC News/Washington Post poll in December showed that 17 percent think abortion should be legal in all cases, and 40 percent said it should be allowed in most cases. Twenty-seven percent believe it should be illegal in most cases, and 13 percent believe it should be illegal in all cases.

A December Los Angeles Times poll showed a different result. Forty-three percent said abortion should be legal in all cases. But 41 percent said it should be illegal with "a few exceptions, specifically, cases of rape, incest and to save the mother's life." Twelve percent said it should be illegal in all cases.However, those results conflict with a Fox News poll this month that showed that voters would oppose the South Dakota law for their own state, 59 percent to 36 percent. And 62 percent said they supported abortion when pregnancy "risks the mother's mental health."

By 61 percent to 28 percent, the Fox poll showed that the public favors a ban on late-term "partial-birth" abortions, the immediate aim of much of the anti-abortion movement and a matter due for decision soon by the Supreme Court.

The high court conceivably might revisit the Roe decision along with partial-birth abortion, but it is thought unlikely to do so because it doesn't have to. Indeed, it's not clear when a challenge to South Dakota's new law will even get to the Supreme Court, or whether the court will even consider it when it does.

Even though the state's anti-abortion lawmakers passed it expressly to give the new Supreme Court a chance to overturn Roe, the votes aren't there to do that even after the arrival of Alito and Chief Justice John Roberts.

Support for Roe stood at 6-3 on the court before the departures of the late Chief Justice William Rehnquist and ex-Justice Sandra Day O'Connor. Now, it's 5-2, with Roberts and Alito as question marks.

Both are conservatives, but both also told the Senate Judiciary Committee that they value precedent, which Roe definitely is after 33 years on the books. But at worst for abortion-rights supporters, the Roberts court is still 5-4 pro-Roe. And by that margin, the court might well decide not to even hear an appeal if lower courts strike down the South Dakota law.

Still, a breakdown of 5-4 means that Roe is just one vote away from being overturned, making it possible that the next nomination to the Supreme Court will be crucial. If Bush doesn't get another nomination, his successor likely will determine Roe's fate, along with the post-2008 Senate.

In past presidential elections, exit polls showed that abortion is a top-tier issue for 6 percent to 20 percent of voters. Republicans usually carry this group by margins of 60 percent to 40 percent.

But if Roe is hanging in the balance, the issue could suddenly become much more important - in this case, with dynamics that favor the abortion-rights side. McCain now wins in most 2008 matchups against Democrats, but this lead could evaporate if voters begin to consider him an opponent of Roe.

Even though he's cut a moderate figure on a lot of issues in the past, he always has identified himself as "pro-life," and his staff says that he opposes abortion except in cases of rape, incest and when the mother's life is at stake.

Except for pro-choice former New York Mayor Rudy Giuliani, other GOP contenders have stances similar to McCain's.

Politically, Republicans have to hope that Roberts and/or Alito end up embracing Roe, leaving the court 6-3 pro-Roe or even 7-2. Because if Roe is perceived to be under threat, the GOP is in trouble.

Mort Kondracke is the Executive Editor of Roll Call, the newspaper of Capitol Hill since 1955. © 2007 Roll Call, Inc.

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