First abortion test in new Congress goes to pro-life side

WASHINGTON -- Pro-choice forces lost their first test of the new Congress on Tuesday, a skirmish over the rights of protesters in bankruptcy court, in a vote that reflected last fall's election results.

"Clearly, with the freshman class that came in this year you gained a number of pro-life votes," said Sen. John Thune of South Dakota, one of seven conservative Republicans who won their seats last fall. "I think the culture of the Senate has changed on that issue to the right."

Douglas Johnson of the National Right to Life Committee placed the shift at three seats.

Democrats and their allies, girding for a possible Supreme Court nomination fight later this year, disagreed only with the estimated size of the shift.

"We're seeing a net gain of two anti-choice votes in the Senate, for a split of 51-49," said Vicki Saporta, president of the National Abortion Federation.

"Both houses have an anti-choice majority. You have an anti-choice White House," she said. "So it's very difficult for us to be able to prevail on issues pertaining to upholding a woman's right to choose."

Lawmakers on both sides of the issue cautioned against reading too much into Tuesday's 53-46 vote on which the Senate said it would not deny protesters the chance to use bankruptcy proceedings to avoid payment of court fines or penalties. Supporters said their proposal applied only to violent protests; opponents said individuals participating in peaceful protests could also be affected.

Democrats had tried to attach the amendment to a major bankruptcy measure.

GOP leaders were able to minimize defections by stressing an overriding goal of clearing bankruptcy legislation that can win swift passage in the House, where abortion opposition is stronger than in the Senate.

At the same time, some Democratic abortion foes supported the proposal, Sen. Harry Reid of Nevada, the party leader, among them. "I want to emphasize that this amendment is not about the right to abortion," he said. "It applies to any extremist who turns to violence to protest lawful activities."

Overall, Sen. Charles Schumer, D-N.Y., the author of the defeated proposal, said the vote showed that the current Congress is "less friendly to pro-choice than last Congress."

He quickly added, though, that the relative closeness of the vote, particularly in comparison with other attempts to change the bankruptcy bill, showed that "on many choice issues we still have a good fighting chance."

The big clash, by general agreement, would be triggered by a vacancy on the Supreme Court, where Chief Justice William Rehnquist, 80, is suffering from thyroid cancer and three other members are over 70. Strongly opposed to abortion, President Bush could have as many as three or four appointments to make before his term expires.

The court has grown more conservative since its landmark 1973 ruling that recognized a right to abortion, although it has upheld the core of the decision in the intervening years.

"That is where the battle of choice is going to be amplified. We're going to have the votes to uphold a filibuster, and we're going to prevail," said Nancy Keenan, head of NARAL-Pro Choice America.

Interim judicial battles are expected. Democrats blocked confirmation of 10 of Bush's court appointments in the last Congress, and the issue of abortion figured in many.

Additionally, with their ranks strengthened in last fall's elections, Republicans are threatening to implement a change in Senate procedures to eliminate the threat of future filibusters in the cases of judicial nominations.

At the same time, abortion opponents intend to seek passage of other legislation likely to provide a good barometer of the changes brought by the election.

One, backed by Sen. Sam Brownback and more than two dozen other senators, would require abortion providers to notify a woman who is seeking to end her pregnancy 20 weeks after fertilization of any medical evidence that the fetus can feel pain during the procedure. "Elections matter. We have a pro-life Senate," the Kansas Republican said in an interview.

Republicans have previously stressed their desire to pass legislation making it a federal offense to take a minor across state lines for an abortion if that would circumvent laws requiring parental notification.

Johnson said the measure has cleared the House three times, but was blocked by filibuster in 1998 in its only Senate test. "Now with the gains in the election we're cautiously optimistic that it may be possible to pass that in the Senate," he said.

Abortion rights lawmakers have felt confident enough in recent years to seek an advisory vote on the court's 1973 ruling. They prevailed in 1999 on a vote of 51-47, and again in 2003 on a vote of 52-46.

Now, Johnson predicted such a vote would end in a 50-50 tie.