Is Alito’s Roe decision backfiring on GOP, as predicted?

Voters in Kansas resoundingly sent a state abortion ban to defeat on Tuesday, a major victory for the abortion rights movement in one of the country’s reliably red states. It was by a decisive margin, too — 59 to 41 percent — that Kansans opted to keep the right to abortion in the state constitution. The defeat of the ballot referendum suggests a strong political backlash against the Alito Supreme Court’s decision to overturn Roe v. Wade, the landmark decision that had protected abortion rights throughout the country for the last half-century.

Surprised? Some won’t be. Check out this story from The Baltimore Sun published in the summer of 2005, when John Roberts was nominated by President Bush to take the seat vacated by associate justice Sandra Day O’Connor, who was retiring. The story, by Sun reporter Michael Hill, predicted a backlash like the one that happened in Kansas.

If high court overturns Roe v. Wade, decision would undermine the GOP

As the confirmation process for Supreme Court nominee John G. Roberts Jr. moves forward, many Democrats express concern his could be the vote that will overturn the Roe v. Wade decision.

But if Roe were overturned, who would stand to gain the most politically? Most agree that it would be Democrats.

“I would think that Republican strategists would not be pleased at all to see Roe v. Wade overturned,” says Alan I. Abramowitz, a political scientist at Emory University.

Thomas F. Schaller, associate professor of political science at the University of Maryland, Baltimore County, agrees.

“The last thing the Republicans want nationally is for Roe v. Wade to be overturned,” he says.

That seems counter-intuitive. Overturning the decision that gave constitutional protection to a woman’s right to an abortion has been a cornerstone of the Republican platform for years. Getting such a ruling from a reconstituted Supreme Court would seem to be a big victory for the GOP.

The problem for Republicans is that it would throw the issue back into the arena of legislators who have to face the voters.

Since the Roe v. Wade ruling in 1973, anti-abortion politicians have been able to castigate the Supreme Court for allowing the procedure. But they have never had to actually cast a vote outlawing it. And most polls show that in most states, that would be an unpopular vote.

“It would become a wedge issue for Democrats,” says Johns Hopkins University political scientist Matthew Crenson.

With Roe as the law of the land, Republican opposition to the decision has been mainly symbolic – garnering the party support from abortion opponents – with little political cost to those not so fervent on the issue.

Schaller, who has worked in Democratic campaigns, says Republicans are in a no-win situation.

“If Roberts votes to overturn Roe, there will be wholesale defections from the GOP, especially among white women,” he says. “If he votes to uphold Roe, the conservative base will be in an uproar because this is the first nominee of the post-evangelical era. Either way, there will be a Democratic windfall.”

Forcing Republicans to cast a vote outlawing abortion would damage Republican attempts to maintain a middle-of-the-road image, Schaller contends, noting that the past two Republican presidential conventions have featured prime-time appearances by many pro-choice and pro-gay-rights Republicans, such as Rudolph W. Giuliani and Arnold Schwarzenegger.

“If those most energized partisans – the ones waiting for a Supreme Court opening hoping to overturn Roe v. Wade – become the face of the party, that would make it very difficult for a Republican Party trying to attract moderate suburban women,” Schaller says.

Herb Smith, a political scientist at McDaniel College, concurs, saying, “If you want to knock out soccer moms and probably a pretty good part of NASCAR dads from the Republican Party, then overturn Roe v. Wade.”

President Bush “is pretty much like Reagan in that he gives a lot of lip service to the extreme right of the party, but if he ever has to deliver to them, then it’s goodbye, Republican majority,” he says.

With Roe v. Wade in place, Republicans have been able to paint the Democrats into an extreme corner, making them defend unlimited access to abortion on demand to please their more radical abortion-rights elements. This puts the Democratic Party at odds with the polls that show that most Americans support legalized abortion but favor restrictions.

“I think Republicans have been able to take advantage of Roe v. Wade being there, as this allows them to work around the edges of the issue and propose various restrictions that have broad public support, things like bans on so-called partial-birth abortion or parental notification laws,” Abramowitz says.

“But they can tell religious conservative groups that they would like to ban abortion but there is nothing they can do about it,” he says.

However, if Roe were overturned, then there would be something they could do about it. That would change the political dynamics.

“If you look at the debate now, it is the Democrats that are stuck with defending things like partial-birth abortion, which is a loser,” says Mark A. Graber, a political scientist at the University of Maryland, College Park. “If Roe v. Wade is overruled, in a great many states it will be Republicans who are stuck in an extremist position.”

Says Schaller: “The people who will be really put to task are the true anti-abortion absolutists, who want it outlawed in every case but rape and incest. Roe v. Wade has given them a free pass.”

Graber, author of Rethinking Abortion, says that when Roe was decided in 1973, four states had legalized abortion – New York, California, Alaska and Hawaii.

It was a controversial step at that time.

“In New York, the law was passed in 1971 and repealed the next year, but the governor, Nelson Rockefeller, vetoed the repeal,” says Graber, who also teaches at Maryland’s law school.

In the ensuing three decades, the situation has changed. “Just look at New York,” he says. “Even Republicans there run as pro-choice.”

“What Roe did was create a world in which abortion is legal, and everyone has lived in that world since then,” he says. “People started to live their lives – Republicans started to live their lives, conservatives started to live their lives – in ways that assumed that abortion will always be available.

“That’s in the back of their mind, even people who are pro-life, that it will be there,” Graber says. “One thing we know is that among women who had abortions – whether before the unwanted pregnancy they were pro-choice or pro-life – a great many women discover that they are still pro-life. So personally, as long as it is legal, they can say that they are against it.”

The most fervent opponents of abortion want the Supreme Court to outlaw the procedure by giving 14th Amendment protection to the unborn. Few think that is possible. But there is a chance that a new court could find that the well-established right to privacy does not extend to abortion, overturning Roe v. Wade.

That could open the door for a federal law.

“Given the makeup of Congress now, there might very well be an effort to try to push legislation through to try to restrict access to abortion,” Abramowitz says. “That would be very controversial and very provocative, whether it passed or not.”

For that reason, national leaders might send the issue back to where it was when Roe was decided, to the states, where it would be embraced by only the most fervently anti-abortion state legislators.

“I think most state legislatures would rather not deal with it, except for the way they deal with it now, peripherally, passing some restrictions that may be more symbolic than anything else,” Abramowitz says. “Except for the real hard-core social conservatives, they would rather not see the core issue [of whether abortion should remain legal] come before them.”

Schaller says part of this reluctance is simply a reflection of the time it would consume.

“It would get in the way of the regular business of finance and state budgets, the bread-and-butter tasks,” he says. “If it gets punted back to the state legislatures, there will be a lot of people in town soaking up a lot of attention looking for votes.”

Action on the state level might turn out to be more symbolic.

“Louisiana, for example, will ban abortion,” Graber says. “A couple of other states will probably pass more restrictive measures limiting access. For example, Montana might ban abortion, but right now there are no abortion clinics in Montana, so nobody is getting abortions there.

“I would say that there are 25 states that are not likely to change access to abortion,” he says, including Maryland, which has already taken its stance, giving constitutional protection to abortion access. “There are 10 that might outlaw it, but those are the bottom 10 in terms of the number of abortions now, responsible for less than 1 percent of all abortions in the United States.”

Graber says there was a dress rehearsal for a Roe v. Wade reversal in 1989 when the Supreme Court’s Webster v. Reproductive Health Services decision opened up the possibility of states passing many more restrictions on abortion so long as they didn’t outlaw it.

“It was rather remarkable,” he says. “A number of governors and other people immediately sought special legislative sessions that promptly went nowhere. Florida was the most notable example.

“It turned out everyone needed more time to study the issue, or they didn’t want to interrupt their vacation or some other excuse,” Graber says. “Almost nothing passed after Webster. In fact, the next set of elections were in New Jersey and Virginia, and in both the pro-life candidates got trounced.”