Up to three of the liberal supreme court judges may step down in the next four years, writes David Savagein Washington
EVERY FOUR years, defenders of abortion rights proclaim that the fate of the landmark US supreme court ruling on abortion, Roe v Wade, hangs on the outcome of the presidential election.
This year, they might be right.
Throughout most of 1990s and until recently, the supreme court had a solid 6-3 majority in favour of upholding the right of a woman to choose abortion.
But the margin has shrunk to one, now that Justice Sandra Day O'Connor has retired and been replaced by Justice Samuel Alito. And Justice John Paul Stevens, a leader of the narrow majority for abortion rights, is 88. "Clearly, Roe is on the line this time," says Indiana University law professor Dawn Johnsen, formerly a lawyer for Naral Pro-Choice America.
"What we find scary is that people don't understand what's at stake," says Kathryn Kolbert, president of People for the American Way.
"In the next four years, one to as many as three supreme court justices may step down, and they all will come from the liberal end of the court."
But that does not mean abortion or the fate of the Roe decision is a rallying cry on the campaign trail for either Democrats or Republicans.
The two parties have staked out opposite positions, but their candidates rarely mention them when campaigning. The abortion issue is enormously important to the base of both parties, political strategists say, but it is a touchy and difficult matter to raise with an audience of swing voters and those who are undecided.
On the Republican side, Kenneth L Khachigian, a California lawyer and campaign adviser to former US president Ronald Reagan, says abortion has become a key issue in the primary races but not in the general election. "It is a motivating factor at the grassroots level," he says.
When John McCain was considering his choices for a running mate, conservative activists threatened a rebellion at the Republican convention if he chose a supporter of abortion rights. McCain galvanised his support with conservative activists when he selected Sarah Palin, who opposes abortion even in cases of rape and incest.
McCain's website says he "believes Roe v Wade is a flawed decision that must be overturned".
Barack Obama has called himself a strong supporter of abortion rights. But, like McCain, he does not talk up the issue on the campaign trail.
Polls show the US public remains closely split on abortion. Most say they favour legal abortion with some restrictions.
In August, a poll for the Pew Research Centre for the People and the Press found that 54 per cent said abortion should be generally legal, and 41 per cent said it should be mostly illegal.
This week, the supreme court opens its term, and abortion is not on the docket there, either. The justices have steered away from abortion-related disputes in recent years. They remain closely and bitterly divided on the issue.
Four justices - Ruth Bader Ginsburg, David Souter, Stephen Breyer and Stevens - have consistently supported the right to abortion and have voted to strike down restrictions. Antonin Scalia and Clarence Thomas have said Roe v Wade should be overturned, leaving the states or Congress to decide the abortion issue.
Chief Justice John Roberts and Alito served as young lawyers in the Reagan administration, which was committed to reversing Roe.
Positioned in the middle, Justice Anthony Kennedy has supported strict regulation of abortion, but has opposed a ban.
If Stevens or Ginsburg were replaced by a staunch conservative, that would tip the majority against abortion rights.
It is not certain, however, that Roberts and Alito would join Scalia and Thomas in pressing to overrule the right entirely.
Some conservative lawyers agree that a McCain victory would only set the stage for overruling Roe. Regardless of who wins, Democrats will probably maintain a majority in the Senate and could block a conservative McCain nominee to the supreme court.
- (LA Times-Washington Post service)