Walter Dellinger, veteran Supreme Court litigator and former U.S. solicitor general, said yesterday that although reproductive rights has not been a big discussion topic so far in the presidential campaign, it is an issue that will certainly loom large in the next presidential administration.
The likelihood that the next president will like appoint at least one Supreme Court justice in his first term is rather high, and the last time the Court took on the issue – in the October 2006 term – it resulted in a 5-4 split upholding a state ban on so-called partial birth abortion.
Still the issue has not been an election-year lightning rod, in part due to a collective belief among experts that Roe v. Wade is unlikely to be overturned, no matter who wins the election.
But yesterday, at a Supreme Court discussion panel hosted by the American Constitution Society for Law and Policy, Dellinger said of the notion that Roe is completely safe: “I think that is profoundly and fundamentally wrong.”
“I think people don’t realize how much is at stake,” he said.
The addition of another justice on the bench – depending on whether the justice will be an Obama nominee or a McCain pick – could critically change the Court’s determination of what constitutes an “undue burden,” he said. There are several states that have places restrictions on abortions, any of whom would be ripe for challenge. “What states can basically do is regulate abortion out of the reach of” many poor and rural women Dellinger said. “The ‘undue burden’ standard depends very much on the justice.”