Elections, the Court, and Abortion

January, 1991

By James W. Skillen

WASHINGTON, D.C--If one were to listen only to Operation Rescue's Randall Terry or the National Abortion Rights Action League's Kate Michelman, one might think that the polarization of America over abortion is growing worse.

Michelman paints a picture of women being driven back into dark-age conditions if their right to abortion is inhibited in any way. She wants even more than Roe v. Wade now permits.

Terry, on the other hand, who was leading a rescue operation here on November 17, said, "We will never give up until our bodies are cold in the ground or until child killing is driven back to hell where it came from."

Despite the clear and simple opposition between Terry and Michelman, however, the battlefronts over abortion are diversifying. The issues involved are multiplying. The "clash of absolutes" is becoming more complicated.

November Elections

November's elections did not settle much. "Pro-choice" bravado is certainly not justified. Given the appointment of David Souter to the U.S. Supreme Court and the inability of pro-choice forces to win any victories in Congress in 1990, the election shows that the pro-life cause is holding its own. Not much is likely to change in Washington during the next two years. And while pro-choice governors were elected in the important states of Florida, Texas, Georgia, Rhode Island, and Minnesota, pro-life governors won in the equally important states of Pennsylvania, Michigan, Ohio, Kansas, and Iowa.

Pro-life groups believe that with the shift of attention to state politics ever since the Court's Webster decision in 1989, they now have the time and the legislative means to keep chipping away at Roe. Pro-choice groups on the other hand believe that as long as Roe remains in force, they still have a good chance to strengthen the existing foundation of abortion rights in state law. From a political point of view, then, the future appears to be one in which America will become divided between those states that allow abortion or restrict it minimally and those that outlaw it or restrict it significantly.

The Continuing Influence of Webster

In 1989, the Supreme Court did not overturn Roe v. Wade (1973), but with its ruling in the Webster case it did signal a new openness to state limitations on, and regulation of abortion. As new appointments to the Supreme Court changed its balance during the 1980s, the Court's reasoning shifted from upholding a woman's right of privacy (and therefore abortion) to a more subtle respect for state regulations designed to protect pregnant women, children, and in some cases even the unborn.

The Webster ruling has encouraged some states to experiment not only with regulations of narrow detail (such as requiring that parents be notified before an abortion is performed on a minor child) but also with more expansive laws that might one day lead to the reversal of Roe v. Wade.

The goal of abolishing abortion by means of a single constitutional amendment is no longer the chief aim of most leaders in the pro-life movement. Americans United for Life (AUL), for example, is a legal group working at many levels. In the aftermath of Webster, AUL has renewed its commitment to an "incremental approach to overturning Roe and has determined that directing legal challenges at Roe's specific weaknesses is still the best course of action."

During the Supreme Court's last term (1989-90), it ruled in favor of two states' parent notification laws (Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health) saying that parents of minors who are considering an abortion should be informed before the abortion takes place. A parent's right to know about a minor's intention to have an abortion does not go very far toward stopping legalized abortion, of course. But it adds an important qualification that challenges the claim of complete privacy and independence on the part of a pregnant woman. If a dozen more qualifications can be added, such as restricting late-term abortions and further defining the conditions in which an abortion can be performed, then incrementalists like those in the AUL believe that the country may eventually reach the point where the Supreme Court will permit states to restrict nearly all abortions if they choose to do so.

This past October 30, the Supreme Court heard oral arguments in the only major abortion-related case it is considering this term. New York v. Sullivan deals with federal government regulations that prohibit the use of Title X funds for any program where abortion is promoted as a method of family planning. If the Court's ruling in New York v. Sullivan upholds the government's current restrictive regulations, that will be another small boost for the pro-life cause as it works to chip away at Roe v. Wade. On the other hand, if the Court rules against the Title X regulations as they now stand, the pro-choice movement will undoubtedly celebrate with new hope.

What Does the Future Hold?

The fact that the abortion issue is now being argued and fought on many fronts and at many different levels means that predicting its future outcome in America is impossible. The public has not yet really begun to deal with the implications of the new pill RU 486 (not yet on the American market) that stops gestation after conception. And the fight over fetal-tissue research is itself only in the early stages. Clearly the fight to save unborn life ought to grow to fill an ever-expanding arena embracing issues of children's health care, medical research, and the social/economic well-being of families.