Antiabortion forces celebrated a victory last week when Congress passed a bill barring so-called partial-birth abortion. But many observers--Democrats as well as some conservatives--doubt that the bill (which President Bush has vowed to sign into law) will be upheld by the Supreme Court since it differs little from a Nebraska law struck down by the high court by a 5-to-4 vote in 2000. The court ruled that because the Nebraska law did not contain an exception for cases in which the mother's health is at stake, it was unconstitutional. The new measure also has no health exception, though lawmakers have included "findings" declaring that the procedure is never medically necessary--findings most legal experts say will carry little weight with the high court.
If that is true, why go through the exercise? For one thing, social conservatives feel that passing the bill--which prohibits certain abortions after partial delivery of the fetus--will give a needed boost to Bush's conservative base. But there may be another calculation. By passing a measure that seems likely to be struck down by the current court, they are increasing pressure on the President to nominate a strongly antiabortion candidate for the next Supreme Court vacancy--particularly if it's the seat of Sandra Day O'Connor, who voted with the majority in 2000. "All it would take is one vote" to swing the court, says Doug Johnson of the National Right to Life Committee. This may dim the chances of Bush's White House counsel Alberto Gonzalez, who is on the short list for the court but whose position on abortion is suspect in the eyes of some hard-line Republicans. Several groups are poised to challenge the law in court, but don't look for conservatives to try to rush the litigation to the Supreme Court--until it has at least one friendly new face.
--By Viveca Novak