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The New York Times
Both Sides Look to the Supreme Court
By ROBIN TONER
WASHINGTON, March 16 -- The wrenching debate in the Senate last week was about more than what critics call partial-birth abortion. On each side, there was a clear recognition that this was the beginning of a broader struggle, that the long-simmering abortion war was entering a new, more contentious phase.
For now, that struggle is focused on bills imposing new restrictions on abortion, which suddenly have a chance in a Republican-controlled Senate, and on the confirmation of conservative nominees to the lower courts. But these are, in some ways, proxy wars. Opponents and supporters of abortion rights are ultimately focused on the Supreme Court, now in its longest stretch in 180 years without any turnover, and as a result long overdue for a change.
The anxiety -- and the political mobilizing -- is building at the approach of another summer, when the Supreme Court's term will end and any retirements might be announced. No one outside the court knows when the next vacancy will occur, but many people contend it is imminent, and each side in the abortion debate says it will affect the shape of reproductive rights.
"Without question, that is where we're heading," said Kate Michelman, president of Naral Pro-Choice America. "We are likely to have a vacancy by June, and we must be prepared."
Genevieve Wood, spokeswoman for the Family Research Council, an anti-abortion group, said: "We're obviously always thinking ahead to who's going to be the next appointment to the Supreme Court. The politics of abortion is fought out at the ballot box, but it is fought out in the judicial offices as well."
The intensity and scope of the struggle are apparent in the messages the two camps are sending to their supporters, on their Web sites, via e-mail and by other means. They are urging their troops to weigh in on the federal appeals court nomination of Miguel Estrada, delayed by a filibuster by Senate Democrats who contend he is a stealth candidate not forthcoming enough about his views. The Estrada dispute is widely considered a precursor, a chance to test strategy and set the ground rules, for what will ensue when a Supreme Court vacancy occurs.
The National Right to Life Committee is urging supporters to defend his nomination. "Estrada's confirmation is being blocked by the Senate Democratic leadership because he has not committed to support abortion," it declares on its legislative action Web site. Democrats supporting the filibuster, the Web site says, "should be targeted for phone calls, e-mails, and faxes expressing the clear message, 'End the filibuster against Miguel Estrada -- give the man a vote!' "
On the other side, officials of Naral Pro-Choice America say they produced 35,000 communications to the Senate opposing Mr. Estrada last weekend, through their "choice action network" and 30,000 more against the ban on the procedure that critics call partial-birth abortion. At the same time, another skirmish is beginning with the renomination of Priscilla R. Owen, a Texas Supreme Court justice, to a federal appeals court; she, too, is opposed by abortion rights groups.
The abortion battles are moving quickly from front to front. A day after the Senate passed the ban on the abortion procedure, which is expected to pass the House quickly and be signed into law by President Bush, abortion rights groups served notice that they would seek to block it in the courts. "Planned Parenthood will file suit as soon as the bill is signed," its president, Gloria Feldt, said in an interview. "I mean that minute."
The Supreme Court, in a 5-to-4 decision three years ago, ruled that a similar ban was unconstitutional under Roe v. Wade, the 1973 decision that declared a constitutional right to abortion. Supporters of abortion rights say the ban the Senate passed this week is every bit as unconstitutional as the law thrown out by the Supreme Court. Abortion opponents reject that argument. But they are hoping that the Supreme Court will be a different court by the time any challenge of the law reaches it.
As Douglas Johnson, legislative director for the National Right to Life Committee, put it, "We hope that by the time this ban reaches the Supreme Court, at least five justices will be willing to reject such extremism in defense of abortion."
The anger and the passion over the role of the court -- and how it might change -- bubbled up repeatedly on the Senate floor last week.
The senators were debating a procedure known technically as intact dilation and extraction. It is sometimes used to end second and third trimester pregnancies. Typically, abortion opponents say, the lower part of the fetus's body is delivered, the head is punctured and collapsed, and a dead but intact fetus is delivered.
It is estimated that the procedure was used in 2,200 abortions in 2000, less than 1 percent of all abortions, according to the Alan Guttmacher Institute, a nonprofit organization affiliated with Planned Parenthood.
But opponents of abortion say the procedure is tantamount to infanticide and highlights the "extremism" of the Supreme Court's view of abortion rights under Roe. Supporters of abortion rights counter that such procedures are sometimes necessary to protect the health of a woman and are clearly protected by Roe.
Senator Hillary Rodham Clinton, Democrat of New York, declared at one point: "This bill is not only ill-advised, it is unconstitutional. I understand what the other side wants to do. They are hoping to get somebody new on the Supreme Court and to turn the clock back completely, to overrule Roe v. Wade."
Senator Rick Santorum, the Pennsylvania Republican who was the chief sponsor of the ban, countered with a bitter denunciation of the court for the Roe decision, saying that it had coarsened the nation's culture and stained its history as much as slavery. "It took from the people the right to decide their own fate, and rested it in an unelected body, at that time of nine old men," Mr. Santorum told the Senate.
In an interview on Friday, he likened Roe to the Dred Scott decision of 1857, when the court ruled that blacks born into slavery had no constitutional rights. "The more people understand how wide open Roe v. Wade is, how unlimited it is," Mr. Santorum said, the more they turn against it.
The clash of world views on abortion echoes more and more through Washington these days; at one point, the Senate moved from debating the bill to ban intact dilation and extraction to holding a vote on the Estrada filibuster. (The Republicans failed to break it.) "There's no coincidence that partial birth and Estrada are banging around at the same time," Mr. Santorum said.
More legislation and nominations are in the pipeline. Then there is the approach of summer and the great unknown of the Supreme Court.
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