TIME: Almanac 1993/TIME Almanac 1993.iso/time/071789/07178900.024

Text File | 1992-09-23 | 9.8 KB | 185 lines

                                                                                NATION, Page 62

The Battle over Abortion


A bitterly divided Supreme Court sets the stage for the most
corrosive political fight since the debate over Viet Nam


    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.