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- <text id=89TT1228>
- <title>
- May 08, 1989: A Day Of Reckoning On Roe
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1989
- May 08, 1989 Fusion Or Illusion?
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- NATION, Page 24
- A Day of Reckoning on Roe
- </hdr><body>
- <p>The high court faces the abortion question -- and asks a few
- </p>
- <p> Both inside and outside the U.S. Supreme Court last week,
- the endless argument over abortion came to a critical
- confrontation. Outside there was a raucous standoff on the
- courthouse steps and plaza, where some 200 demonstrators, pro
- and con, sang, chanted and shouted. Inside, where the noise
- could not penetrate, the nine Justices were assembled to hear
- arguments in William L. Webster v. Reproductive Health Services,
- a case that could leave in tatters the pivotal Roe v. Wade
- decision that legalized abortion in 1973. In both places many
- of the issues were the same. But inside, though the language was
- less heated, it had more weight.
- </p>
- <p> During the one-hour courtroom session, attention was
- fastened upon the questions posed by the pivotal
- Reagan-appointed Justices: Anthony Kennedy, Antonin Scalia and
- Sandra Day O'Connor. Their inquiries to lawyers on both sides
- ranged far from the Missouri law restricting abortion to the
- larger question of where to draw the borders of privacy rights.
- Do these rights encompass abortion? If not, is contraception
- excluded too? As for the four Justices who regularly support
- Roe, only John Paul Stevens took an active part in the
- proceedings. Harry Blackmun, who wrote the landmark opinion, sat
- silently throughout.
- </p>
- <p> Missouri Attorney General William Webster, the first to
- speak, attempted to minimize the impact of his state's
- antiabortion law, which declares that life begins at conception
- and bars the use of public funds and public facilities such as
- hospitals to perform or assist in an abortion. The statute,
- which has never gone into effect, would also forbid doctors in
- publicly funded hospitals to "encourage or counsel" a woman to
- obtain an abortion. Webster argued that several of the law's
- provisions would have little impact, implying that the court
- could uphold them without jeopardizing Roe.
- </p>
- <p> It was former Solicitor General Charles Fried, called back
- by the Bush Administration to argue this case, who made the
- broad attack, presenting the White House argument that Roe
- should be overturned. In the most interesting exchanges of the
- morning, O'Connor and Kennedy appeared to press Fried to explain
- how the court could reverse Roe without also undoing a crucial
- 1965 decision, Griswold v. Connecticut. In that ruling the court
- found that the right of privacy protects the decision to use
- contraceptives. Abortion is different, Fried replied, because
- it involves the purposeful termination of potential life. "We
- are not asking the court to unravel the fabric of . . . privacy
- rights which this court has woven," he said at the beginning of
- his presentation. "Rather, we are asking the court to pull this
- one thread."
- </p>
- <p> That line provoked the sharpest rejoinder of the day, from
- attorney Frank Susman, who argued on behalf of the Missouri
- abortion clinic that is challenging the antiabortion law: "It
- has always been my personal experience that when I pull a
- thread, my sleeve falls off . . . It is not a thread he is
- after. It is the full range of procreational rights and
- choices."
- </p>
- <p> Susman put to his own purposes a tactic of the antiabortion
- forces, who argue that scientific advances will invalidate Roe
- by making the fetus viable earlier in pregnancy. Susman pressed
- the notion that scientific progress had made the right to
- abortion impossible to disentangle from the right to practice
- contraception. He maintained that certain forms of birth control
- such as intrauterine devices act after the sperm and the egg
- have joined, a description that some medical experts dispute.
- But if accurate, then such devices in effect abort what the
- Missouri statute would define as a living being.
- </p>
- <p> But when Susman argued that there is a fundamental right to
- abortion, Scalia appeared to see the border of one right
- impinging upon another. "It is very hard to say . . . that it
- must be a fundamental right," he replied, "unless you make the
- determination that the organism that is destroyed is not a human
- life."
- </p>
- <p> Now the Justices must decide how widely to rule: to strike
- down the Missouri law or to support it as compatible with Roe;
- they could also restrict or, less likely, overturn Roe. Many
- observers expect a fragmented court until further appointments
- produce a firm majority on one side or the other. As with some
- affirmative-action cases, even Justices who agree in an abortion
- ruling might disagree about the legal basis for their
- conclusions. Although the Justices were expected to vote on the
- case in a closed-door session last week, their decision is not
- likely to be announced until late next month. Then the arguing
- inside will be finished for a while, still leaving much room for
- argument outside.
- </p>
-
- </body></article>
- </text>
-
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