Clift: The Abortion Wars and Campaign 2008

The human toll is unfathomable. And the heartfelt debate triggered by the slaughter at Virginia Tech—over why America allows such easy access to guns, and how best to determine when a troubled student might turn into a psychopath—will rage on for years. But as a political matter, the killings in Blacksburg, Va., will likely have little impact—on the presidential campaign of 2008, at least. That race will, however, be affected by another story in the news this week, albeit one overshadowed by the campus massacre. The Supreme Court's 5-4 ruling banning a particular late-term-abortion procedure put the partisan divide in this country in sharp relief: Every major Democratic contender denounced the decision. Every major Republican contender applauded it.

Will the pro-choice community be galvanized, as it was in the early '90s? Will the Republican right, emboldened by the ruling, push a flurry of further restrictions on abortion? If so, Democrats generally—and Hillary Clinton in particular—will benefit. Clinton wasted little time condemning the decision on her Web site, calling it "a fundamental attack on a woman's right to choose and a dramatic departure from decades of policy that put our rights and our health first." In an e-mail to supporters, she said the consequences of the ruling "is to state that women's health need no longer be a consideration." And in a speech Friday at Rutgers University, she called the ruling a "radical step" that marginalizes women and their health.

If Sandra Day O'Connor were still on the Court, the decision would have gone the other way. O'Connor was the fifth and deciding vote in an almost identical case testing the constitutionality of a late-term- abortion ban seven years ago. She retired last year to care for her ailing husband. Pro-choice advocates used to look upon the high court as an ally, a bulwark against the excesses of mostly male politicians legislating what happens with women's bodies. No more. As a woman, I am outraged by five men in robes cavalierly dismissing concerns about women's health and overpowering the lone woman on the Court, Justice Ruth Bader Ginsberg, who took the unusual step of reading her dissent from the bench. She called the decision "alarming" and in a comment that sharply undercuts the collegiality the justices try to project, she said the majority made no attempt to conceal their hostility toward abortion rights. She said the decision "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."

For the first time since the 1973 Roe v. Wade ruling, the Court upheld an abortion restriction that makes no exception for the health of a woman. The decision is as loosely grounded as Bush versus Gore, elevating moral concerns of the ruling male majority over medical facts. The impact is not about the one banned procedure—there are alternatives—but the fact that the Court trod on the sacred nature of protecting women's health. Blinded by ideology, the four conservative justices who joined Justice Kennedy (a swing vote and a devout Roman Catholic) chose to denigrate the argument that a woman's health is a legitimate concern in this equation. It's outdated thinking—but clever strategy.

With the Court's senior liberal, Justice Stevens, celebrating his 87th birthday, the future of abortion rights is at a crossroads. The strategy of overturning one piece at a time, then getting to the point where Roe v. Wade is so hollowed out the justices might as well overturn it, is not a right-wing fantasy. It is the strategy Justice Alito outlined when he was a junior lawyer in President Reagan's White House some 20 years ago. And the argument long made by conservatives, that Roe v. Wade is based on a flimsy legal foundation, has clearly gained ground in the courts.

Hillary Clinton voted against Alito when he came up for confirmation in the U.S. Senate. She also voted against John Roberts, now the chief justice, whose moderate demeanor and charming manner fooled a lot of Democrats into thinking he wouldn't vote in lockstep with the Court's conservatives on reproductive rights. In casting those votes, Clinton specifically talked about the danger to Roe v. Wade. She is well positioned to champion the rights of women, who are her natural base. "It's always easier to rally women around something that's real, as opposed to theoretical," says Ann Lewis, a longtime Clinton adviser. "This has moved from a hypothetical danger to a dangerous fact."

Still, there are risks for Democrats in overplaying their hand. The Court's decision is really not about partial-birth abortion, the name given to a particular late-term procedure by its opponents. Most Democrats shied away from defending the procedure. Indeed, many in the party—including Sen. Clinton, have been talking about the need to reduce the number of abortions in America for some time now. But this ruling gives Democrats a chance to frame the issue anew—as a fundamental erosion of the right to choose, and invites more restrictions.

Late-term abortions account for only .08 percent of the 1.3 million abortions that take place in this country every year. Most of that .08 percent are done to protect the life of the mother, so they are not affected by the Court's ruling. This is a tiny, tiny sliver of a much larger issue. Politicians of either party seeking the center on an issue with such moral ramifications should be able to agree on ways to reduce abortions without criminalizing a medical procedure—and putting doctors, and potentially, women, in jail.