Even so, Bush has wasted no time making his pro-life position perfectly plain, telling abortion opponents January 22 that his goal “will lead us onward to build a culture of life,” in which abortions are rare. For pro-life activists, these were the words of a friend, in marked contrast to someone like Clinton — who often spoke of keeping abortion “safe, legal, and rare.” Dan Avila of the Massachusetts Catholic Conference admits that he and his colleagues cannot help feeling heartened by the election of a president who shares their views. Adds Avila, “Those who say there’s no difference between the present and past administrations fail to recognize all an administration can do. That Bush is pro-life will certainly benefit us.”
THE LAST time the landmark Roe decision came under fire was back in 1992, when the Supreme Court heard Planned Parenthood v. Casey. In that case, the Court forever changed the definition of a woman’s constitutional right to an abortion; it allowed states to enact restrictions on abortion so long as they do not place an “undue burden” on women’s access. Experts say the Court isn’t likely to rule on a case involving Roe until Bush is able to replace a pro-Roe justice with an anti-Roe successor. And Roe isn’t in jeopardy of being overturned unless two pro-Roe justices are replaced by two who oppose the decision.
In the 28 years since Roe, the Court has heard about two dozen cases dealing with abortion, says Tom Jipping, who directs the Center for Law and Democracy at the conservative Free Congress Foundation in Washington, DC. Yet no more than three have dealt with the core protections outlined in Roe. In the first two cases — the 1986 Thornburgh and the 1989 Webster decisions — the Court failed to address Roe at all. It wasn’t until the 1992 Casey case — 19 years after Roe — that justices mentioned the legal rights established in 1973. Since then, Jipping explains, not one case has addressed the heart of Roe — that is, whether the decision is consistent with the US Constitution.
Right now, the country’s highest court narrowly favors legal abortion, with a six-to-three pro-Roe majority. But three of the nine justices — Antonin Scalia, Clarence Thomas, and Chief Justice William Rehnquist — adamantly oppose the 1973 ruling. (Rehnquist, who has served on the Court since 1972, dissented in the original case.) And two of the six justices who support Roe — Sandra Day O’Connor and Anthony Kennedy — have taken a notably ambivalent stance. Both sided with their anti-Roe colleagues in the Casey decision, for instance, but would not support overturning Roe.
Explains Wendy Parmet, a Northeastern University professor who teaches constitutional law, “The balance on the Court is very delicate.... All you need to tip the scales is a slight change in the [Court’s] composition.”
That, of course, worries pro-choice advocates the most. At least two Supreme Court justices, John Paul Stevens, 80, and Rehnquist, 76, are widely expected to step down within the next four years. A previous bout with breast cancer has made O’Connor a likely candidate to retire as well. Indeed, pro-choice advocates believe O’Connor could do just that as soon as the current judicial session ends this July. Throughout the presidential campaign, Bush held up the avidly anti-Roe Scalia and Thomas as examples of the kind of justice he’d appoint. If both Stevens and O’Connor stepped down and were replaced with strict anti-Roe justices, that would give the Court enough votes to overturn the law.
Rosemary Dempsey of the Center for Reproductive Law and Policy (CRLP), in Washington, DC, maintains that the addition of even one more anti-Roe judge could easily jeopardize existing legal protections because “what started out as a strong decision for the right to abortion has become far more neutral in its language.”
Activists like Lee hold out little hope that even pro-choice Democrats and Republicans in the Senate would stand firm against a regressive judicial appointment. Look what happened with the recent Ashcroft nomination: 42 Democratic senators put up a decent fight by voting against the ultra-conservative attorney general, but 58 of their colleagues — nine pro-choice Democrats, as well as their Republican counterparts — voted to confirm him. The Ashcroft vote shows that where one stands on abortion is often a question less of party identity than of constituent approval. Says NOW president Patricia Ireland, “I’m particularly worried about the Southern senators who carry the Democratic card but view their constituencies as pro-life. Why would they block an anti-choice judicial nominee?”
Abortion-rights advocates identify another problem as well. Those senators upon whom the pro-choice movement relies, including Massachusetts senators Ted Kennedy and John Kerry, might hold the line were Bush to put forth an outspoken anti-choice zealot. But what would happen if they had to go through the nomination process twice? If facing a second, more moderate candidate — someone like, say, Anthony Kennedy or David Souter — liberal senators could come across as obstructionist for sounding the alarm again.
Parmet sums up the thought best: “There are lots of milquetoast-looking and -sounding conservatives. I don’t think the Senate would balk at somebody who privately opposes Roe, yet takes a less controversial public stance.”
Although Jipping points out that no abortion cases dealing with the constitutionality of Roe are now wending their way through the federal courts, that could change quickly with an anti-Roe majority. Dempsey, of the CRLP, has no doubt that an anti-Roe majority of five would prompt an anti-abortion state like Nebraska to reintroduce its partial-birth-abortion ban, which was struck down last year. In that case, Stenberg v. Carhart, the Supreme Court invalidated the Nebraska legislation because it prohibited not just one procedure, but an array of common and safe methods. The Court also ruled that the law didn’t make appropriate exceptions for a woman’s health.
With an anti-Roe majority on the Court, however, Nebraska — and as many as 29 other states with similar bans in the pipelines — could rewrite the legislation so that it outright prohibits a certain type of procedure after, say, 20 weeks of pregnancy. Or it could flat-out specify that a woman can have this type of procedure only if she faces death going into delivery. “I would bet that piece of legislation makes its way through the state legislature and before the courts in no time were anti-Roe justices appointed,” Dempsey says. She adds, “An anti-Roe majority could uphold [such] legislation. That would basically mean that you don’t have a right to an abortion at all.”
Ultimately, though, some observers doubt the Supreme Court would overturn a precedent with as much public salience as Roe — regardless of whether it achieves an anti-Roe majority. Boston University professor Kenneth Simons, who teaches constitutional law, notes that the Court rarely falls out of step with popular opinion. “The Court pays attention to public sentiment,” he says. And this, he adds, explains its more recent decisions allowing for restrictions on abortion. A January report by the Gallup Organization, for example, shows that the percentage of people who want abortion outlawed has remained between 17 and 19 percent. Yet only 28 percent of people believe that abortion should remain legal in all circumstances, while 51 percent support the procedure sometimes. Concludes Simons, “The court is close to the middle position on what many people believe about abortion.”
Given public attitudes, he speculates, “the Court will likely allow more and more restrictions on abortion. But until people want to forbid abortions, the Supreme Court is unlikely to overrule Roe entirely.”
THAT SAID, there’s no question that women’s reproductive rights in this country remain in serious jeopardy. They’ve been eroding slowly yet significantly ever since Roe was decided. Parmet, of Northeastern, puts it more bluntly: “The right to abortion doesn’t mean what it did in 1973 at all. Given [later cases], one could say in all honesty that Roe v. Wade has already been overruled.” The point is highlighted by the fact that over the past six years, Congress has voted 134 times on reproductive-health issues. Pro-choice advocates have lost all but 24 times.
And even if Roe isn’t overturned, legislative restrictions on abortion — mandatory waiting periods, mandatory consent requirements, counseling bans — can eliminate abortion just as effectively. Even seemingly innocuous regulations like a mandated 24-hour waiting period can prove onerous. Thirty states prohibit a woman from getting an abortion until 24 hours after she signs a consent form (although the Massachusetts legislature passed a waiting period, a state court ruled it unconstitutional under Massachusetts laws). For a woman who lives in Boston, a waiting period could mean visiting a nearby abortion provider twice in two days — perhaps taking several hours off work or hiring a baby-sitter each time. These are minor inconveniences, but inconveniences nonetheless. And for a woman who lives in North Adams, a 24-hour waiting period would be more than inconvenient. She’d have to travel all the way to Springfield or across state lines before arriving at an abortion clinic. Forcing her to wait another 24 hours might require her to pay for overnight hotel accommodations. If she is poor, she might sleep in her car, or at the bus station. If she has children, the price of a baby-sitter might seem overwhelming.
Or consider the parental-consent requirement. Massachusetts women under 18 cannot receive abortion services without the consent of one parent. If a teen doesn’t wish to tell her parents that she’s pregnant, the legislation forces her to navigate the courts seeking a judicial bypass. That requires the teen to find a lawyer, then go before a judge requesting a waiver. In short, the restriction sets up hoop after hoop that may encourage teens to carry unwanted pregnancies to term. As Boston NOW’s Lee notes, “The goal of [anti-choice] lawmakers is to make sure women don’t have abortions. You don’t need to overturn Roe to do that.”
The fact that so many legislative restrictions have passed — most without banner headlines — illustrates how wily pro-life advocates have grown. They’ve learned they cannot shove radical change down people’s throats, but that if they keep patient, they can quietly chip away at reproductive rights until Roe looks like what Chief Justice Rehnquist calls “the storefronts on a Western movie set, just a façade.” James Nuzzo, a Boston-based Republican consultant, says pro-life Republicans realize that a frontal assault on Roe is counterproductive. “People recognize that to change the climate toward the unborn they must change hearts and minds,” he adds. “They know to address abortion in an incremental fashion, then wait for the culture to catch up.”
In the meantime, though, pro-life forces continue to chip — much as a sculptor chisels away at a block of marble. What they are creating is hard to discern, because the image is taking shape so slowly. But when the pro-lifers do put down their tools, chances are abortion-rights supporters won’t like what they see.
Yet Bush’s surprisingly early and extreme attacks on abortion rights may end up being a timely blessing in disguise. It may be just the wake-up call pro-choice advocates need to rouse supporters from eight years of complacency and to mobilize against the steady gains made by their opponents during the Clinton years. Maybe now, as Mass NARAL president Melissa Kogut says, “people will finally get it: there’s a lot at stake when it comes to reproductive choice.”
Kristen Lombardi can be reached at klombardi[a]phx.com.
