FactCheck.org = Kerry Ad on Abortion: Fuzzy Math

Kerry Ad on Abortion: Fuzzy Math

Kerry claims the Supreme Court is "just one vote away" = from=20 overturning abortion rights for women. Make that TWO votes.

April 24, 2004

Modified:April 24, 2004

Summary

A Kerry ad released April 19 claims = the US=20 Supreme Court is "just one vote away from outlawing a woman's right to = choose"=20 an abortion.

But the fact is that only three of the = current nine=20 judges have ever voted to overturn the 1973 Roe v. Wade = decision that=20 legalized abortion.

Analysis

The claim that a single Supreme Court = appointment could result in overturning the Roe decision = was=20 true -- more than a decade ago. In 1992 the court voted by a = bare 5-4=20 majority to reaffirm Roe in a pivotal case, Planned = Parenthood v.=20 Casey .

Kerry=20 Ad: "Choice"

Announcer: The=20 Supreme Court is just one vote away from outlawing a woman's right = to=20 choose. George Bush will appoint anti-choice, anti-privacy = justices. But=20 you can stop him.
Help elect John Kerry and join the fight to = protect=20 our right to choice. Contribute now at JoinJohnKerry.com. Call or = log on=20 now.

Kerry: I = promise=20 to take the fight to George Bush every single day. I'm John Kerry, = and I=20 approved this message.
Announcer: Log on, = call,=20 contribute for a new = direction.

But one of the four justices who = voted to=20 overturn Roe was Byron White, who retired the following = year to be=20 replaced by Ruth Bader Ginsburg, a Roe supporter. White died in = 2002.=20 That leaves only three current members -- Chief Justice William = Rhenquist=20 and Justices Antonin Scalia and Clarence Thomas -- who voted to=20 overturn Roe and who continue to say it was wrongly=20 decided.

The "One Vote Away" = Claim

Despite that, = abortion-rights groups and=20 some liberal Democrats continue to make the claim that the court is "one = vote=20 away" from overturning Roe, especially in appeals = for money=20 and members. Last year Kate Michelman of the National = Abortion=20 Rights Action League said, marking Roe's 30th = anniversary:

Michelman: = Roe v. Wade=20 is hanging on by a one-vote majority - with an anti-choice President = and=20 Congress eager to install the one justice who could take our freedom=20 away.

And Eleanor Smeal of the = Feminist=20 Majority said of Roe :

Smeal:=20 It's in the greatest danger it's ever been in. . . . You're one = vote=20 away.

The "one = vote away"=20 claim is sometimes echoed unquestioningly by news reporters as well, but = the=20 court record doesn't support it.

The Actual=20 Supreme Court Record

Abortion-rights=20 activists point to a Supreme Court decision in 2000 striking down a = Nebraska law=20 against so-called "partial birth" abortions. That case, = Stenberg v.=20 Carhart, was indeed decided by a single vote, 5-4. But the fourth=20 dissenting vote in that case was Justice Anthony Kennedy, who went out = of his=20 way to write that he did not question the basic holding in=20 Roe.

Thomas = wrote a dissent<= /A>,=20 joined by Rhenquist and Scalia, saying of Roe: "that decision = was=20 grievously wrong." But Kennedy did not join that dissent. = Instead, he=20 wrote his=20 own saying, "The holding of Casey, allowing a woman = to elect=20 abortion in defined circumstances, is not in question here." And = Casey=20 reaffirmed Roe.

What = Kennedy=20 would have allowed in that case was a Nebraska law banning=20 a procedure sometimes used in late-term abortions. Nebraska = said its=20 law was aimed only at "D&X" abortions, in which the skull of a fetus = is=20 collapsed after its contents are vacuumed out. Unlike the three=20 anti-Roe Justices, Kennedy made clear he was not disputing the = "right=20 of choice" laid down by Roe and reaffirmed in the 1992 = Casey=20 decision:

Kennedy: The State = chose to=20 forbid a procedure many decent and civilized people find so abhorrent = as to be=20 among the most serious of crimes against human life, while the = State=20 still protected the woman=92s autonomous right of choice as = reaffirmed=20 in Casey. (Emphasis added.)

From that = record, it is=20 clear that the Supreme Court is indeed "one vote away" from upholding = state laws=20 that ban the D&X "partial-birth" abortion method. But that's not the = same=20 thing as being one vote away from overturning the right to abortion in=20 general.

Anti-abortion groups=20 don't count Kennedy as an ally, and see only three votes on the court = for=20 reversing Roe. Douglas Johnson of the National Right = to Life=20 Committee says:

Johnson It = would be=20 welcome news if in fact "only" five justices supported = Roe. =20 Regrettably, however, it is not true. . . . Justice Kennedy = regrettably=20 but demonstrably supports a right to obtain an abortion for any reason = up to=20 "viability."

Kerry = would be correct=20 to say that the next President could possibly change = the composition=20 of the Supreme Court sufficiently to bring about the rejection of=20 Roe, but it would take more than a single appointment to = accomplish=20 that.

(Footnote: = Roe might=20 actually have been overturned in the 1992 Casey decision if = Justice=20 Kennedy had not changed his mind. Notes of the late Justice Harry = Blackmun were=20 released March 4, 2004 showing that Kennedy had initially sided with = Rhenquist,=20 White, Scalia and Thomas, but switched and voted to reaffirm=20 Roe instead. Blackmun wrote the 1973 Roe = decision. He was=20 replaced in 1994 by Justice Stephen Breyer, another strong = supporter of=20 abortion rights.)

Sources

Kate Michelman, = " 30th Anniversary of Roe v. = Wade=20 ,Remarks of NARAL = Pro-Choice America=20 President," National Abortion Rights Action League, 21 Jan = 2003.

Anne Gearan, = " Uncertain future looms as Roe v. = Wade turns=20 30 ," The = Associated Press,=20 21 Jan 2003.

The Associated Press, = "Papers reveal Roe v. Wade almost = overturned,=20 Blackmun's records unsealed on fifth anniversary of his = death," 4 March 2004.

Planned=20 Parenthood of Southeastern PA. v. Casey, 505 U.S. 833 = (1992).

Stenberg,=20 Attorney General of Nebraska, et al. v. Carhart, 530 U.S. 914=20 (2000).