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Nominees face abortion issue

Like Roberts, Alito will be grilled on his views

Abortion \— a hot-button issue in 1993 \— is still viewed as a critical issue before the Supreme Court. Many Americans view it as the top moral issue of the times.
Abortion \— a hot-button issue in 1993 \— is still viewed as a critical issue before the Supreme Court. Many Americans view it as the top moral issue of the times.
Joe Marquette, Associated Press

WASHINGTON — Abortion was the first question out of the box at John Roberts' Supreme Court confirmation hearing. Hand-wringing over the same issue was rife during Harriet Miers' short-lived nomination to the court.

Now abortion again is central to the debate over Samuel Alito, the latest nominee for the high court.

For all the important legal issues facing the nation, somehow abortion and the Supreme Court's 1973 Roe v. Wade ruling always seem to elbow to the forefront of the debate over modern judicial nominations, just as in the 1950s the court's Brown v. Board of Education desegregation ruling reflected the most important social issue on the American landscape.

"It's always going to be one question in the front and center," Rep. Linda Sanchez, D-Calif., said recently from the steps of the Supreme Court.

The same thought echoes from the right end of the political spectrum. Also, polls find that people believe no single issue before the court has greater importance.

The reasons are both simple and complex.

Abortion is directly and intensely relevant in the lives of a huge swath of the population.

One-third of U.S. women will have had an abortion by age 45, based on current abortion rates, according to the Alan Guttmacher Institute, a nonprofit group that researches reproductive health issues.

"Abortion, for better or worse, is more common in this country than many people realize or wish were true," said Susan Cohen, the institute's director of government affairs.

Beyond that, abortion to many people is the pre-eminent moral issue of the times — a matter of life and death. It also becomes a touchstone for broader questions about government intrusion into people's lives, judicial restraint and a host of social issues, almost a proxy for liberalism or conservatism in general.

"It's fraught with all sorts of social meaning," said pollster Andrew Kohut, director of the Pew Research Center. "In the modern era, it's the issue that has most divided liberals and conservatives."

Politicians and interest groups help to stir the pot, tapping into people's passions and fears about the issue to mobilize voters and collect their dollars.

"As a result of the kind of partisan trench warfare that's going on in Washington, the special interests on both sides basically drive the agendas based on those issues that increase their membership, and that's what's going on here," said Leon Panetta, former chief of staff to President Bill Clinton.

"There are a . . . a lot of other issues that ought to be debated and considered beyond the question of Roe v. Wade," said Panetta, now director of the Panetta Institute at California State University, Monterey Bay.

Lawyer Michael Carvin, a former deputy assistant attorney general under President Ronald Reagan, spoke last week of a public "fixation" with abortion. He added, "Some of us care about the other 99 percent of cases."

A Pew poll in July found that 63 percent of those surveyed identified abortion as a very important issue before the court. Both Democrats and Republicans gave it high priority; those who identified themselves as liberal or conservative attached the greatest importance.

Only the rights of detained terrorism suspects were seen as equally significant. Trailing were issues including religious displays, lawsuit award limits and affirmative action.

For some people, abortion simply carries more emotional weight and is easier to grasp than other legal matters.

"Issues around congressional powers and individual standing and access to the courts, these are all critical issues that are going to affect us all, but they're a little more arcane and take a little more explanation than whether or not safe abortion services are going to be available," says Cohen, whose organization supports open access to abortion.

So, does abortion figure more prominently in the debate over judicial nominees than it should, crowding out other important issues?

Republican William Bennett, a former education secretary and the author of a book of moral values, answers yes and no.

He believes attention to the matter is overblown because the court is unlikely to overturn Roe even if Alito is confirmed. If Roe were overturned, Bennett said, "It's not going to have the consequences that a lot of people on the left say," because states still could allow legal abortions.

Yet "the issue merits the kind of debate and attention it gets because it is life and death," Bennett said.

If that sounds a little conflicted, so are many people, particularly those in the middle of the political spectrum.

A consistent majority opposes overturning Roe, but most support restrictions on abortion, such as requiring minors to get parental consent.

On the question of morality, 41 percent in the Pew survey think abortion is wrong in some circumstances and 29 percent say it is morally wrong in nearly all circumstances, compared with about one-quarter who think abortion is not a moral issue.

For all the sound and fury, Panetta said, the nomination process yields little light.

"In the end you really don't know where these justices stand because the whole point is not to let anybody know how, in fact, you would decide or for that matter what you believe in," he said. "It's all a game of how much you can confuse the audience by your answers."