Abortion on The Ropes

By Andrea Sachs

It is a right that in the course of just 15 years many Americans have come to regard as no less inalienable than freedom of religion or expression. It is a right exercised by 1.6 million U.S. women each year -- some rich, some poor; some barely out of childhood, some close to middle age; nearly a fifth married, the rest single. But in the eyes of many Americans, the right to abortion, established by the landmark 1973 U.S. Supreme Court decision Roe v. Wade, is not a right at all, but a wrong.

For 15 years opponents of abortion have directed their energies toward overturning the hated decision. Now, with George Bush's capture of the presidency, many believe victory is almost at hand. "I think we see the end of the tunnel and the demise of Roe v. Wade," proclaims Clarke Forsythe, legal director of Americans United for Life. With the Republican win, insists John Willke, president of the National Right to Life Committee, "we won the big one."

Indeed, in the aftermath of the election, momentum is clearly with the "pro-life" side in what may be the final round of the battle over abortion. "I'm extremely worried," says Kate Michelman, executive director of the National Abortion Rights Action League (NARAL). "I'm scared about what the court might do, and I'm concerned about George Bush." Though Bush has taken various positions on the issue over the course of his long political life, he campaigned for the presidency on a staunchly antiabortion platform. Last week he affirmed his commitment to that platform by deciding to keep as Attorney General Dick Thornburgh, an ardent convert to the antiabortion cause.

The November election also brought three other victories to that cause: voters in the states of Arkansas, Colorado and Michigan approved propositions that ban the use of state funds for abortions. For pro-choice advocates, these were stunning setbacks. In the past decade 9 out of 10 such referendums had been won by the pro-choice side.

But the battle over Roe v. Wade will not be won or lost in the Oval Office or in state legislatures. The showdown will take place where the struggle began: in the Supreme Court. Though the court has not yet agreed to hear an abortion-related case this term, Thornburgh's Justice Department wasted no time in its efforts to place the subject on the docket. Just two days after the election, it filed a brief asking the high court to hear a case from Missouri. "If the court is prepared to reconsider Roe v. Wade," argued the document, "this case presents an appropriate opportunity for doing so."

The case, Webster v. Reproductive Health Services, involves a Missouri statute that states that life begins at conception and that no public funds can be used to perform an abortion or to counsel women about this option. The statute was originally drafted in 1985 with an eye toward reversing Roe v. Wade. "We hoped all along this law would get up before the U.S. Supreme Court," says Samuel Lee of Missouri Citizens for Life. "We think this is the right time."

Whether or not the court agrees to hear this particular case, Lee is not alone in thinking that it may be presently disposed to overrule Roe. "I think there's a very distinct possibility that it will -- this term," said Justice Harry Blackmun in September. According to the man who wrote the embattled decision, "you can count the votes." Four Justices -- William Rehnquist, Antonin Scalia, Sandra Day O'Connor and Byron White -- are believed to be against Roe. Speculation centers on the possible fifth and deciding vote, that of the newest Justice, Anthony Kennedy. Kennedy's record is conservative but presents few clues to his leaning on this issue.

For the court, a key consideration will be the legal principle of stare decisis, the policy of standing by settled points of law. According to this doctrine, even if Roe v. Wade were seen by the Justices as a bad decision, revoking it after 15 years might be considered too politically and socially disruptive. However, a majority of the court, including Justice Kennedy, has already shown a willingness to re-examine well-established law. Last term the five conservative Justices stunned the legal community by voting to reconsider Runyon v. McCrary, an important 1976 civil rights decision. "This suggests a court where standing precedents are not sacred," says University of Virginia law professor A.E. Dick Howard.

Even if the present court is not willing to overturn Roe, time may be on the side of the pro-lifers. Three of the Justices who voted with the proabortion majority in Roe are now in their 80s. Antiabortion forces are betting that George Bush will continue Ronald Reagan's policy of appointing Justices who are sympathetic to conservative causes.

Pro-life groups have no intention of turning down the heat. "We're not resting on our laurels," says Barbara Magera of Operation Rescue, an organization that seeks to shut down abortion clinics through picketing and harassment of patients and staff. Some 10,000 Rescue activists have been arrested in the past year. Last week Rescue struck again in St. Paul, with 200 protesters blocking the entrance of a Planned Parenthood clinic. Ultimately, Rescue and several other groups intend to press not only for a Roe reversal but also for a "human life" amendment to the Constitution.

Battered pro-choice groups, who kept a relatively low profile during the campaign, are now pulling out the stops for their own last-ditch, high- visibility crusade to safeguard the right to abortion. "We are determined that not one woman in America will die or be maimed from a back-alley abortion because George Bush was elected President of the U.S.," said Molly Yard, president of the National Organization for Women. NOW is planning a huge letter-writing campaign to petition the Justice Department and Supreme Court to retain Roe v. Wade, plus a protest at Bush's Inauguration. Together with NARAL, the group is also planning a mammoth pro-choice demonstration in Washington in early April. "Mr. Bush may intend to make abortion illegal again," declares Yard, "but he has to understand that if he tries, he will be awakening a sleeping giant."

Motivating this giant -- the millions of women who have exercised their right to abortion -- may prove difficult. Most Americans favor this right: in an NBC poll in October, 64% of the respondents said they wanted to keep abortion legal. Still, supporters tend to think of abortion as a settled question. "Many people we deal with have grown up with legal abortions," says Emily Tynes, a former NARAL official. "They feel it's a fundamental right that's part of their world."

What would happen if Roe v. Wade were to be erased from the books? For some pro-choice groups, the next step would be to seek federal legislation ensuring abortion rights. "If Roe is overturned, the first place we're going to go is the Congress," says Douglas Gould of Planned Parenthood. Aside from the question of whether Congress would support such a law, however, legal experts are divided as to whether it has the constitutional authority to legislate in this area.

In the absence of federal legislation, abortion would probably become a matter decided individually by each state. That type of "checkerboard effect" would probably leave abortions legal in liberal states like Oregon and New York and outlawed in conservative states like Missouri and Utah. Even in the wake of the recent antiabortion triumphs, pro-choice advocates find it hard to believe that it could come to this pass. Says NARAL's Kate Michelman: "Taking away rights that have already been given us is a hard thing to pull off."

With reporting by Steven Holmes/Washington