Abortion ruling will be an issue in '08

The Supreme Court's decision banning a controversial late-term abortion procedure was hardly a surprise. But it underscores the fact that the legal right to an abortion, sanctioned by the high court 34 years ago, hangs by a thread.
And the decision on what critics call "partial-birth" abortion will have significant political implications for the rest of the Bush presidency and for the 2008 election.
It almost certainly will keep President Bush from placing another abortion rights foe on the Supreme Court unless the next vacancy stems from the departure of a conservative justice, such as Antonin Scalia, Clarence Thomas or one of the two newest members, John Roberts and Samuel Alito.
Senate Democrats would likely be able to block Bush from naming an abortion rights opponent to replace one of the five justices who clearly back the 1973 decision that legalized abortion.
Beyond that, the decision may elevate abortion's role in the 2008 election, both in the Republican race and the general election.
All of the likeliest Democratic presidential nominees back a woman's right to an abortion, though there are some differences over the procedure the high court outlawed Wednesday. So the party's standard-bearer will almost certainly be someone who could be expected to name justices who would vote to keep abortion legal.
The GOP contest is more complicated. Most of the candidates, like Bush, bill themselves as opponents of abortion rights. But there are shades of differences, which may well be accentuated in the forthcoming primary campaign, probably starting with the first candidate debate May 3.
Sen. John McCain of Arizona has consistently opposed abortion rights. And the decision came as he sought to contrast his position with what he contends are the less consistent ones of his top rivals.
A flier distributed by the senator's campaign at a GOP event in South Carolina, first disclosed by the Washington Post's Politics Blog, compared his positions on various issues with those of former New York Mayor Rudy Giuliani and former Massachusetts Gov. Mitt Romney.
Authentic flier
The McCain campaign acknowledged that the flier, reproduced on the Post's Web site, was authentic. It cited Giuliani's 2006 statement to CNN that he is "pro choice" and Romney's comment in a 2002 debate that he would "preserve and protect a woman's right to choose."
It also raised the subject of judicial choices, noting a Boston Globe article saying Romney bypassed GOP lawyers in favor of naming Democrats and independents as judges and quoting Giuliani as praising Justice Ruth Bader Ginsburg, a strong supporter of abortion rights.
Romney has acknowledged he changed his position on abortion, which he now calls "the wrong choice" except in cases of rape, incest and to save the life of the mother. But he also seems to oppose action to overturn the law, noting on his Web site that, "while the nation remains so divided over abortion, I believe that the states, through the democratic process, should determine their own abortion laws and not have them dictated by judicial mandate."
Giuliani has taken a more ambiguous stance. He says he supports "reasonable restrictions" on abortion but also backs federal funding of abortions.
At the same time, he said he would name judges "who can be trusted to respect the Constitution as it is written, rather than attempting to legislate from the bench." He also said he would nominate "strict constructionists" and has cited Justices Scalia and Thomas, as well as Justices Roberts and Alito. Both Thomas and Scalia have consistently voted to make abortion illegal.
But articles in The Politico and the Los Angeles Times reported he named many Democrats and liberals to New York judgeships.
McCain would go furthest in seeking to overturn the legality of abortion rights. In February, he said for the first time the court's 1973 decision "should be overturned," in contrast to 2000, when he first said he opposed repeal but later qualified that to say he hoped one day it could be repealed.
In any case, voters are likely to see a sharp contrast between the two major candidates next year, though it could be blurred if Giuliani is the GOP nominee.
With the court so closely divided, the result will make a difference.
Carl P. Leubsdorf is Washington bureau chief of the Dallas Morning News. Distributed by McClatchy-Tribune Information Services.