Bench Memos

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National Right to Life Committee on O’Connor Resignation



WASHINGTON — On the occasion of Justice O’Connor’s retirement announcement today, the following statement was issued by the National Right to Life Committee (NRLC).

“Millions of Americans will be watching to see whether the Senate Democratic leadership bows to the demands of certain pressure groups that a nominee must pledge to rule for the pro-abortion side in future cases,” stated NRLC political director Carol Tobias. “Already, some Democratic senators, such as Ted Kennedy, are clearly demanding a litmus test.”

Many commentators in the news media have made observations about the possible impact of an appointment on legal issues pertaining to abortion. Some of these commentaries are well informed, but others contain misinformation and distortions. For example, one oft-heard myth is that the current Supreme Court is divided 5-4 on Roe v. Wade. This is demonstrably wrong. In reality, six of the current justices, including Justice O’Connor, have voted to reaffirm Roe v. Wade’s holding that abortion must be allowed, for any reason, up until “viability” (and for “health” reasons, which has been broadly defined, even after viability). Thus, even if the President were to appoint a successor justice who some day decides that Roe v. Wade was an unconstitutional ruling, there would still be a pro-Roe majority on the Supreme Court.

The misconception that the Supreme Court is divided 5-4 on Roe was refuted by the Annenberg’s Center’s here.

“The Supreme Court is clearly divided 5-4 on one critical abortion issue — partial-birth abortion,” Tobias said.

In the 2000 case of Stenberg v. Carhart, O’Connor voted with the five-justice majority that struck down state laws that banned the brutal partial-birth abortion method, in which a living premature infant is mostly delivered alive before being killed by puncturing her skull and removing her brain. (Justice Kennedy, a vote in favor of Roe’s doctrine of legal abortion for any reason, nevertheless felt it was constitutionally permissible for a state to ban the particular METHOD of partial-birth abortion.) In 2003, President Bush signed into law a federal ban on partial-birth abortion (except to save the life of the mother), but its enforcement has been blocked by the lower federal courts in litigation that is headed back up to the Supreme Court. The President’s nominee may very well cast the deciding vote to determine whether the brutal partial-birth abortion method will remain legal.

Much of the public has also been misled into believing that “overturning Roe v. Wade” means “banning all abortions.” In reality, the effect of even a complete overturning of Roe would be to place questions relating to protection of unborn children and abortion into the hands of elected lawmakers and the American people, rather than a small group of unelected judges. As the leading pro-abortion litigation group expressed it last year: “A Supreme Court decision overturning Roe would not by itself make abortion illegal in the United States. Instead, a reversal of Roe would remove federal constitutional protection for a woman’s right to choose and give the states the power to set abortion policy.” (“What if Roe Fell?,” Center for Reproductive Rights, September 2004)

For information on other related issues, including refutation of the assertion that Roe applies in some special way “in the first trimester,” see

National Right to Life is the nation’s largest pro-life organization, with 50 state affiliates and approximately 3,000 local affiliates nationwide. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.


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