By Cynthia L. Cooper
Sunday, January 19, 2003
It's been 30 years since the U.S. Supreme Court established a woman's right to an abortion. The ruling in no way put the issue at rest and women's legal advocates are sketching scenarios of what may lie ahead. First of a four-part Roe v. Wade series.
(WOMENSENEWS)--Priscilla Smith, one of the country's leading pro-choice lawyers, knows that most of the scenarios for the future health of Roe v. Wade are troubling. Now celebrating its 30th anniversary, the case that established a woman's right to make her own decisions about abortion in 1973 is still standing, but in a tattered and torn condition. More challenges lie ahead. But for the moment, Smith, reflects on an imaginary tomorrow: the best-case scenario for Roe.
"In my dreams, George W. Bush has a conversion experience and becomes pro-choice, possibly based on the experience of a family member. He nominates a progressive pro-choice woman to a vacancy on the Supreme Court, and she swings the majority. Roe v. Wade is restored to its original promise, and is even strengthened and expanded as a fundamental right with the same level of protection as freedom of speech--a right so important that we won't allow the type of restrictions on it that we have now," said Smith, director of the Domestic Legal Program at the Center for Reproductive Rights (formerly the Center for Reproductive Law and Policy) in New York.
That scenario, she admits, is not likely. Roe at 30 faces the most hostile environment in its entire life, Smith said.
According to legal experts, since the elections of November 2002, the worst-case scenarios are looming larger than ever.
In the Supreme Court, support for the right to abortion now hangs by a fragile single vote.
"I never, never, never thought we'd be in this position," said Sarah Weddington, the Texas lawyer who argued Roe v. Wade in the Supreme Court, securing a 7-2 vote on Jan. 22, 1973 from an all-male bench. "At the time, I thought it had been written in concrete, and now I see it's sandstone." In Roe, Justice Harry A. Blackmun recognized a right to privacy in the U.S. Constitution that encompasses a woman's decision to terminate a pregnancy. Abortion could no longer be criminalized indiscriminately. Especially in the first trimester, women and their doctors could decide to choose an abortion without fear of arrest or government intervention. The fetus did not have a constitutional right to life, the court said, and if a woman's life or health were at stake, abortion could not be banned, no matter what the stage of the pregnancy.
"We only had a short time to celebrate. Within six months, Catholic bishops issued a plan to overturn Roe," Weddington said.
Since then, over 30 more abortion cases have been decided in the Supreme Court, according to Smith. Roe was steadily downsized.
In 1992, in Planned Parenthood v. Casey, the high court modified Roe significantly, even while declining to overturn it. A plurality of the court said that states could place restrictions on abortion, so long as they did not place an "undue burden" on women.
Reams of anti-abortion proposals were introduced in the states, including delay periods, parental consent laws, mandatory lectures against abortion, and the near-total elimination of access to abortion for women reliant on government-sponsored health insurance. According to the new state-by-state review of abortion laws released by NARAL Pro-Choice America on Jan. 15, the states have enacted 335 restrictions on abortion since 1995. The organization's legal director, Elizabeth Cavendish, said 34 new anti-choice measures were enacted last year alone.
Maintaining a majority of five votes in support of abortion rights on the Supreme Court is necessary to keep any semblance of Roe v. Wade. "A good advocate is always trying to count noses and trying to get five votes," said Susan Low Bloch, co-author of the book "Supreme Court Politics: The Institution and Its Procedures" and a professor at Georgetown University Law Center in Washington.
The most recent decision on abortion in the Supreme Court, Stenberg v. Carhart in 2000, revealed that the anti-abortion forces are only one nose away from overtaking that majority. Three justices--Justice Antonin Scalia, Justice Clarence Thomas and Chief Justice William Rehnquist--are ardently against the right to abortion. In addition, Justice Anthony Kennedy, who voted with the pro-choice plurality in 1992, surprised court watchers eight years later by describing great discomfort with abortion rights, according to Sylvia Law, a constitutional scholar on reproductive rights and professor at New York University School of Law. "Kennedy jumped ship," Law said. His vote makes four to oppose abortion.
"Roe is always hanging by a thread. So much in the future depends on who on the Supreme Court resigns and who replaces them," Law said.
If a justice steps down, President Bush, who opposes abortion, will nominate a new justice. Bush has indicated that he will appoint justices like Scalia or Thomas. The U.S. Senate, which must approve the nomination, also collected an anti-abortion majority as of the November 2002 election, according to NARAL Pro-Choice America.
"What's different today is that the people who oppose abortion hold all the cards," Weddington said.
The future scenarios will play out if a moderate or pro-Roe justice steps down and an anti-abortion justice is named, flipping the delicate 5-4 balance on the court toward those who oppose abortion. Several pro-Roe or moderate justices are considered likely to retire, including John Paul Stevens, 82; Sandra Day O'Conner, 72; and, somewhat less likely, Ruth Bader Ginsburg, 69.
"Roe, as modified by Casey, is secure so long as the composition of the court doesn't change. If a liberal retires and gets replaced by Bush, they could overturn Roe or Casey," Bloch said.
The least harsh scenario maintains the status quo. This will occur only if no justices retire during the Bush administration, or if the justice stepping down is a conservative; Chief Justice William H. Rehnquist, 78, is a possibility. In either case, the vote count on abortion would not change and Roe would continue in its current state, subjected to ongoing legislative attempts to undermine it.
A second scenario is the naming of a new justice. In this case, the status quo may still prevail because, as a body, the court has been reluctant to topple its own prior decisions. Kathryn Kolbert, the lawyer who argued the pro-choice position in Casey, believes that this, along with a vocal outcry, saved Roe from being dismantled entirely in 1992. "In some ways, the ruling in Casey was the result of the court being protective of its own institutional decision-making," said Kolbert, now senior research administrator at the Annenberg Public Policy Center in Philadelphia.
A third scenario is the rollback and reversal of Roe. An anti-choice Bush nominee (replacing a moderate) could relegate Roe to the history books by providing the crucial fifth vote that determines there is no constitutional protection for abortion and overturns Roe.
States would then be allowed to pass laws banning or restricting abortion. An abortion apartheid will likely develop, in which some states, notably in the South and Midwest, will make abortion a crime and others, such as California or New York, will keep it legal. "We estimate that if Roe is overturned, women in 17 states could face sweeping criminal bans," Cavendish said. Those states are Alaska, Alabama, Arkansas, Florida, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, Maryland, Ohio, Rhode Island, South Carolina, South Dakota, Texas and Utah.
A fourth scenario could be even more restrictive: the enshrinement of a fetal right to life. If an anti-abortion majority on the Supreme Court not only overturns Roe, but declares that life begins at conception or that a fetus has a constitutional right to life, abortion would be a crime in all states. Such a ruling would be the judicial equivalent of a "Human Life Amendment" to the U.S. Constitution that anti-abortion activists have tried, without success, to pass for years.
Weddington points out that this scenario, while seemingly far-fetched, is quietly gaining ground. "In Roe, one of our arguments was that the government had never treated the fetus as a person. Now there is a big effort by those opposed to abortion, aiming at that part of Roe v. Wade, to give the fetus rights," Weddington said. She points to recent Bush administration regulations declaring that a fetus is a child under the government's State Children's Health Insurance Program.
If Roe is overturned by the court on any grounds, the damage will be long lasting. "They would be undoing 30 years of law, and the rulings will be in place for another 30 years," Cavendish said. "It certainly will take too long for all of the individual women who will suffer."
Acknowledging that the "wheels are set in motion" to overturn Roe, Weddington holds out hope that an activated pro-choice public can prevent the most retroactive scenarios.
"People have known this freedom for 30 years. My theory is that once people have this kind of freedom, they won't let it go," she said.
Cynthia L. Cooper is an independent journalist in New York City who has a background as a lawyer.
Center for Reproductive Rights:
NARAL Pro-Choice America:
The Weddington Center:
Women's Enews, January 15, 2003:
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