The Battle over Abortion

The imposing marble-and-mahogany chamber of the U.S. Supreme Court seems too stately a place for dropping a political bombshell. Yet last week, while opposing bands of demonstrators taunted each other with noisy chants and protest signs on the plaza in front of the court, that is precisely what happened. Seven of the nine Justices emerged from behind the red velvet curtain and took their seats. In the hushed chamber, Chief Justice William H. Rehnquist read in his singsong, quivering voice excerpts of the long-awaited decision of the divided court in the case of Webster v. Reproductive Health Services. Before he was through, it was clear that the country was about to be plunged into the most corrosive political struggle it has experienced since the debate over the Viet Nam War.

In the opinion, a conservative plurality of three members, joined in part by Reagan appointees Antonin Scalia and Sandra Day O’Connor, suggested that as early as next year the court may overturn Roe v. Wade, the landmark 1973 ruling that established the right to terminate a pregnancy. A Missouri law banning the use of state facilities and prohibiting state employees from performing abortions was upheld on the ground that it “leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all.” Another provision, requiring physicians to perform tests to determine whether a 20-week-old fetus could survive outside the womb, was also upheld, in part on the ground that such testing “permissibly furthers the State’s interest in protecting potential human life.”

While stopping short of reversing Roe, Rehnquist seemed to be inviting a test case that might result in its overthrow. “The goal of constitutional adjudication,” said the Chief Justice, “is surely not to remove inexorably ‘politically divisive’ issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them.”

Democracy usually requires that its battles be fought in the legislatures. But in the 16 years since Roe was decided, the nation has avoided a full-scale political brawl between those at one extreme who feel that a fetus is a mass of dependent protoplasm to be extracted without regret and those at the other pole who believe that an embryo deserves protection from the moment of conception. With Roe in place, politicians could pay rhetorical homage to the pro-life movement without having to act on their professed dislike of abortion. Pro-choice groups, confident that the Roe ruling had established an unassailable constitutional right, grew smug and complacent.

Those days are over. Pro-life groups, energized by the hope of overturning Roe, and pro-choice forces, galvanized by fear of that prospect, vow to turn every election in every state into a referendum on the issue. Both sides claim the moral high ground, but the battle surely will be fought at a lower — much lower — level. One side accuses the other of baby killing, showing pictures of fetuses contorted in pain as surgical instruments poke at them; the other warns of the enslavement of women by states if they force those who become pregnant to remain that way.

A day after the ruling, the passions it ignited spilled into the streets. In Boston 300 abortion-rights activists clashed with police as they tried to broadcast their message to tens of thousands of people gathered for the July 4th Boston Pops concert along the Charles River. In Minneapolis a few pro- choice protesters burning a flag were rushed by three waiters from a nearby topless bar. In Atlanta about 450 pro-choice activists carried to the state capitol a stack of coat hangers, a grisly symbol of the back-street butchery they predict if abortion is outlawed.

Even the Justices found it impossible to discuss abortion with their usual comity. Justice Harry A. Blackmun, author of the Roe opinion, attacked the majority in Webster for cowardice, deception, disingenuousness and brute force. The ruling, he bristled, invites the states to pass restrictive laws % and “is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly.” No less angry, Justice Scalia wrote that Justice O’Connor’s reasons for refusing to reconsider Roe “cannot be taken seriously.”

Rhetoric aside, the decision in Webster revealed that there are now four Justices who want to keep the right to abortion intact, four who would like to overturn Roe and give the states wider discretion to restrict abortion, and one — Justice O’Connor — who cannot be placed with certainty in either camp. In past abortion cases, O’Connor has said she would allow state restrictions as long as they are not “unduly burdensome.” But, abortion-rights advocates say, she has yet to meet a burden she considers to be undue. Among those that have passed O’Connor’s standard: requiring abortions to be performed in hospitals, which makes them more costly and time consuming; imposing waiting periods that force women who may live far away from a clinic to make return trips; mandatory testing to determine viability.

Nevertheless, O’Connor is the pro-choice movement’s best hope in the three abortion cases that the court agreed to hear in its next term, which begins in October. Two of the cases involve parental notification; the third, from Illinois, requires that facilities where abortions are performed must meet stringent hospital-level licensing standards, a step so costly that it could force many clinics to shut down. Any of the cases could give the Justices an opportunity to attack Roe directly.

Despite the outcry, the court’s ruling has limited practical impact: any woman can still legally get an abortion, even in Missouri. The Truman Medical Center in Kansas City and the University of Missouri hospital in Columbia immediately stopped performing abortions, since they receive public funds. But Reproductive Health Services, a St. Louis clinic that challenged the Missouri law in the high court, and other private facilities remain open. The closing of publicly subsidized facilities could be construed as a back-door way to deny otherwise permissible abortions to the poor. No restrictions are ever likely to thwart the ability of the well-to-do to arrange abortions.

In the weeks to come, pro-life groups will go on the offensive in such states as Pennsylvania, Louisiana, Minnesota, Wisconsin, Ohio, South Carolina, Michigan and, of course, Missouri, where strong grass-roots organizations already exist and the legislatures are larded with sympathetic officials. Pro- lifers will attempt to go well beyond the provisions in the Missouri statute. In some states bills may be introduced that would make a woman seeking an abortion listen to the fetal heartbeat and look at pictures of a fetus at the same level of development as hers.

Pro-choice groups concede that they do not have much chance of blocking such legislation in states where pro-lifers have been organizing for years. Instead, groups such as the National Organization for Women will mount ballot initiatives and may bring lawsuits in states whose constitutions contain privacy provisions that might extend to abortion. They will also try to demonstrate their political power at the polls. “America’s political landscape will never be the same,” says Kate Michelman, executive director of the National Abortion Rights Action League. “To politicians who oppose choice, we say, ‘Read our lips. Take our rights. Lose your jobs.’ “

Until now, abortion has been a single-issue vote only for pro-lifers, but that may be changing. A poll taken for TIME last week by Yankelovich Clancy Shulman found that 24% are so opposed to abortion that they would never support candidates who favor it regardless of their stands on other issues. But that hard core of pro-life sentiment is slightly outnumbered by the 32% who say they would never vote for an office-seeker who advocates restricting a woman’s right to obtain an abortion. The poll also found that 57% do not believe that the court should overturn its ruling in Roe, while 61% disagree with the decision in the Webster case. Only 31% favor new state laws restricting access to abortion, while 57% oppose such limitations.

Political debate, in the end, could force both sides to move in from the extremes. As they vie for support from those with more ambivalent views, pro- choice advocates who felt they had little to gain by discussing abortion after Roe made it legal may now be forced to consider under what circumstances it might be immoral, and to show tolerance for the thinking of the other side. The same process might persuade pro-lifers to acknowledge that a fetus does not develop in a vacuum but entwined in the flesh of another human being with rights and a life that could unravel if the pregnancy is carried to term.

By removing the debate from the judiciary to the state legislatures, the two sides may be able to pull each other, grudgingly, into the great middle where the TIME poll and other surveys show most Americans reside, tolerating for better or worse the ambiguity the issue carries with it. A quiet majority favor choice in the first stages of pregnancy but are nonetheless deeply troubled. Many intuitively recognize that as a fetus grows, so does society’s obligation to protect it. Precisely where that obligation begins or ends remains the imponderable. But whoever can capture those still groping for an answer may end up winning the war.

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CREDIT: TIME Chart

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