Friday’s decision by the U.S. Court of Appeals for the Eighth Circuit that the federal ban partial-birth abortion places the abortion issue front and center in the debate over whomever President Bush nominates to replace Justice O’Connor. While O’Connor was not the swing vote on abortion — as the “essential holding” of Roe was supported by six justices before her retirement — she was the swing vote on partial-birth abortion, casting the deciding vote to strike down Nebraska’s ban in Stenberg v. Carhart and authoring a concurring opinion suggesting that a more narrow piece of legislation might pass constitutional muster. The Bush Administration is sure to appeal the Eighth Circuit’s opinion to the Supreme Court, and I would expect the justices to take it. Assuming no other justice has changed his or her mind on the subject, O’Connor’s replacement could cast the deciding vote.
Politically, this development is surely to the nominee’s advantage. While some Republicans may be wary of the confirmation fight focusing excessively on Roe, a debate over partial-birth abortion (like parental notification, which is at issue in another abortion case the Court will hear next time) puts the Democrats at a distinct disadvantage. The federal ban passed both houses by wide margins, as many Democrats were reluctant to be seen supporting such a brutal procedure. This will make opposition to a Bush nominee on this issue seem particularly extreme.