By Russell Shaw
Thirty-five years ago, with the Supreme Court's legalization of abortion in the United States a newly accomplished reality, its supporters claimed the court had settled the abortion question in American politics. They were wrong.
No more than the Supreme Court's Dred Scott decision in 1857 settled slavery did its Roe v. Wade decision on Jan. 22, 1973, settle abortion. Today, as the country heads into the thick of the 2008 political season, abortion is at or near the heart of the debate.
Among other things, this means the outcome of the elections next November will be shaped at least in part by abortion and will in turn shape the politics of abortion for the next four years or more.
Several specific legislative proposals may be in play in the two years of the next Congress and the four years of the next president's first term.
Abortion supporters are likely to seek to expand federal funding of stem-cell research that involves the killing of human embryos and to end the so-called Mexico City policy that bans funding for groups which perform or promote abortion overseas.
Congress last year adopted measures expanding stem-cell research funding and ending the Mexico City policy, but President George W. Bush vetoed them. If a new Congress passes them again, a pro-choice president would be virtually certain to sign them into law.
Pro-lifers will attempt to cut off federal support for Planned Parenthood under Title X of the Public Health Service Act, which provides more than $300 million annually for family-planning programs. Although Planned Parenthood, the nation's largest abortion provider, doesn't get federal funds directly for abortion, critics say receiving federal family planning money allows it to shift funds to that purpose.
An amendment to end Title X funding for Planned Parenthood was sponsored in 2007 by Rep. Mike Pence, R-Ind., and defeated in July, 231-189. Its revival is likely in the next Congress.
Pro-lifers also are expected to seek enactment of a measure to provide various forms of assistance to pregnant women who might otherwise consider abortion. The legislation, called the Pregnant Women Support Act, was introduced late in 2007, but has yet to come up for a vote.
Pro-life and pro-abortion groups regard these and other measures not only as important in themselves but also as important tests of strength. Now and for the foreseeable future, though, all agree that the central abortion-related issue is and will remain something else -- namely, judgeships, including possibly one or more new members of the Supreme Court along with hundreds of new judges for lower federal courts.
Here, the power to nominate candidates rests with the president and the power to accept or reject them rests with the Senate.
In the future as now, which bills get passed and which don't and which nominees for judgeships are confirmed and which aren't will depend on the political configuration of the presidency and Congress. Although there are some pro-life Democrats and some pro-choice Republicans, the GOP nevertheless is officially committed to the pro-life position while the Democratic party is officially pro-choice.
How the parties line up was illustrated in this summer's House vote on the Pence amendment to defund Planned Parenthood. Sixteen Democrats and 173 Republicans voted to deny Title X money to the group, while 210 Democrats and 21 Republicans voted against doing that.
The political fortunes of each side in the abortion debate thus will either rise or fall dramatically if the White House and one or both houses of Congress are controlled by the same party. If the election instead continues the current situation of divided government, with a president of one party and a Congress controlled by the other, the outcome on abortion is likely to be stalemate.
That was the scenario throughout 2007, with a Republican president and a Democratic Senate and House often blocking each other on abortion as well as many other issues.
President Bush had no chance to nominate new Supreme Court justices last year, but many believe the Senate would have rejected a clearly pro-life nominee if he had. If the matter comes up in 2008 via the death or retirement of someone now on the court, it is questionable whether anyone Bush might choose, pro-life or not, would be confirmed. In that case, the court would operate shorthanded until a new president took over in 2009.
As presently constituted, the Supreme Court is divided 4-4-1 on abortion and other issues. Four conservative justices face off against four liberal justices, with the swing vote wielded by Justice Anthony Kennedy. Two of the conservatives -- Chief Justice John Roberts and Justice Samuel Alito -- were Bush nominees.
Although Kennedy lined up last April with the conservatives -- Chief Justice Roberts, Justice Alito, and Justices Antonin Scalia, and Clarence Thomas -- to produce a 5-4 ruling that upheld the federal law which bans partial-birth abortion, Kennedy has voted in earlier cases in support of Roe v. Wade.
As for federal judgeships beneath the Supreme Court level, no confirmation votes took place in the Senate in 2007. "Most judicial nominees thought to be pro-life were simply stalled in committee, with no action taken," a pro-life source says. This means a substantial, growing backlog of spots on the federal bench for the next president to fill.
Russell Shaw is a contributing editor to Our Sunday Visitor.
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