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Kerry Ad on Abortion: Fuzzy Math

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

April 24, 2004

Modified: April 24, 2004

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Summary

 

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

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

Analysis

 

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

Kerry Ad:  "Choice" 

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

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

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

The "One Vote Away" Claim

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

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

And Eleanor Smeal of the Feminist Majority said of Roe :

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

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

The Actual Supreme Court Record

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

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

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

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

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

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

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

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

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

Sources

 

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

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

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

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

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