Robert Novak

WASHINGTON -- When the Supreme Court Wednesday upheld the Partial Birth Abortion Ban Act passed by Congress in 2003, Senate Majority Leader Harry Reid told a press conference: "I would only say that this isn't the only decision that a lot of us wish that [Justice Samuel] Alito weren't there and [former Justice Sandra Day] O'Connor were there." Does that mean Reid was repudiating his Senate vote for the bill restricting abortions? No, he told me Thursday, he was talking about other decisions by Alito.

Reid, an effective legislator and canny politician, reflects a dilemma on abortion among Democrats who are flying high against dispirited Republicans. Delivering a fetus and then crushing its skull, a procedure called "partial birth abortion" by its critics, is massively unpopular. Its prohibition is favored 61 percent to 28 percent in the most recent poll (Fox News, March 2006). The late Sen. Daniel Patrick Moynihan, who was pro-choice, called the practice "infanticide." But the abortion rights lobby is adamant against any erosion of the Roe v. Wade decision. The leading Democratic presidential candidates -- Sen. Hillary Rodham Clinton (who voted against the ban in 2003), Sen. Barack Obama, former Sen. John Edwards and New Mexico Gov. Bill Richardson -- lashed out against last Wednesday's ruling. The party's tone was set on the House floor Thursday by Rep. Carolyn Maloney, who represents the "Silk Stocking" district of New York including Manhattan's Upper East Side: "We need to stand up to right-wing, conservative extremist efforts and protect the basic rights of women." But 17 Democratic senators voted for the Partial Birth Abortion Ban Act (as it passed, 64 to 34). Their ranks included Sen. Patrick Leahy, the current Judiciary Committee chairman, and Sen. Joseph Biden, a former chairman -- both rated 100 percent for 2006 voting by NARAL Pro-Choice America. Biden, who is running for president, and Leahy seldom withhold their comments on anything. But they have been silent on the court's abortion decision.

Reid, another of the 17 Democrats, had a 65 percent pro-choice record in 2006. He tried to resolve his quandary last week by noting that the Supreme Court's 5 to 4 lineup on partial birth abortion flipped when Alito replaced O'Connor last year (with Reid opposing his confirmation). Reid's public preference for O'Connor over Alito Wednesday was widely interpreted as backtracking on his 2003 vote. The Roll Call newspaper said Reid "seemed to think the Supreme Court's decision was unwise."

"Not at all," Reid told me, when I asked him. Recalling his many votes against partial birth abortion, he indicated he supported the court's abortion decision. "I just don't like what Alito has done on other cases," he said. What other cases? "I can't recall," Reid replied, but promised aides would let me know.

They did so several hours later. Out of more than 50 decisions participated in by Alito, I was told Reid disagreed with four of them. They include Alito dissents, in 5 to 4 opinions, on mandating the federal government to consider global warming and the Hamdan case granting habeas corpus rights to U.S. detainees. Alito concurred in a 5 to 4 decision limiting federal regulation of wetlands and wrote the majority opinion in a 6 to 3 outcome (concurred in by usually liberal Justice Ruth Bader Ginsburg) rejecting federal funding of an educational consultant under the disabilities act. But there is no record of Reid criticizing Alito's court opinions before last Wednesday.

Thomas Carper, the low-profile junior senator from Delaware, tries to walk down the middle of the road on abortion. He was rated 55 percent pro-choice in 2006, but was one of the 17 Democrats voting to ban partial birth abortion three years earlier.

Sometimes disarming in his comments, he said last week after the court upheld the 2003 bill: "I think a number of people who voted for it thought that the court would ultimately strike it down."

Carper's comment pointed to Democrats who are partial pro-lifers when it comes to partial birth abortion. The presence of Justice Alito on the court instead of Justice O'Connor undermines that posture. The party's presidential candidate will be on record for partial birth abortion. How many Democrats will follow in 2008?

Robert Novak

Robert Novak (1931-2009) was a syndicated columnist and editor of the Evans-Novak Political Report.

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