When the Supreme Court struck down state laws three years ago banning late-term abortions, the pro-choice groups that had worked so hard for the victory nonetheless struck a worried tone.
While praising the ruling, the groups quickly focused on the closeness of the 5-4 decision. They concluded that Roe vs. Wade, the landmark ruling 30 years ago establishing a woman’s right to abortion, hung by a thread.
That conclusion has been a mantra for abortion-rights groups ever since, and it will be a way to galvanize the troops as they fight efforts to scale back the scope of Roe in statehouses, courtrooms and Congress. With the possibility of a Supreme Court vacancy as early as this summer, they argue that fears of Roe being overturned could become reality.
“Roe does hang by one vote,” said Nancy Northup, president of the Center for Reproductive Rights. “There is a danger if one of the five members on the Supreme Court were replaced by someone who was hostile to Roe, that Roe could be overturned.”
To opponents of abortion, however, the decision in the late-term abortion case–the court’s most recent abortion ruling–does not look hopeful either. They see the case as, far from eroding Roe, a disappointing defeat in which a majority of the justices declined to outlaw what they believe is one of the most horrific of all abortion procedures. They note that, the late-term case aside, six justices on the court probably would uphold the basic right found in Roe.
“It’s become almost another amendment to the Constitution,” Jay Sekulow, chief counsel for the American Center for Law and Justice, said of the court’s decision in Roe. “To overturn Roe would be a huge shift, a very significant shift on the court.”
In the 30 years since the court announced one of the most contentious opinions in American life, the battle lines remain firmly entrenched, to the point that opponents and supporters of Roe find virtually no room for agreement, even on interpreting decisions like the late-term abortion case. The two factions’ anxiety indicates the deep importance and high emotion they attach to the historic 1973 decision.
With Wednesday marking the 30th anniversary of Roe vs. Wade, the controversy shows no signs of abating. Anti-abortion forces seek any chance to cut back or overturn a decision they believe has led to the deaths of millions, while abortion-rights groups defend a decision they say affirmed a critical right for women.
New legal issues are on the horizon, including the prospect of a late-term abortion ban at the federal level, which will draw immediate court challenges. Also on the front burner is the prospect of a more conservative tilt on the Supreme Court, which could make it easier for the federal and state governments to impose additional restrictions on abortion.
Moreover, abortion-rights groups are focusing on the federal appeals courts, fighting Bush nominees they believe are hostile to their viewpoint. A Democrat-controlled Senate Judiciary Committee last fall, for example, defeated Bush nominee Priscilla Owen after women’s groups and others raised questions about her commitment to abortion rights.
With Republicans gaining a majority in the Senate in the fall elections, President Bush has renominated Owen to a seat on a New Orleans-based federal appeals court.
Abortion-rights groups believe that appeals court nominees should get close scrutiny on abortion because they can have the last word on state abortion laws if the Supreme Court declines to hear the case.
Evolution since 1973
Since the Supreme Court decided Roe, it has taken up 30 cases involving the issue of reproductive rights. It has gradually allowed some restrictions on abortion, such as waiting periods and parental-consent requirements for minors. In deciding the constitutionality of state and federal abortion laws, the court asks whether they unduly burden a woman’s right to an abortion.
“A lot of legislatures are trying to restrict abortion as much as they can, by way of parental-notification requirements and requirements that you be counseled before you get abortions. They’re really pushing and pulling to restrict the right,” said University of Chicago Law School professor David Strauss. “And the standard that the Supreme Court has given us is very vague: `Does this unduly burden the right to an abortion?’ That’s a big judgment call.”
The Supreme Court articulated that standard in 1992 when it decided Planned Parenthood vs. Casey, which presented the biggest threat to date to Roe. Abortion-rights supporters feared the court would use the case to overturn Roe, but the court instead reaffirmed it 5-4.
`Undue burden’ standard
Three Republican appointees–Justices Sandra Day O’Connor, Anthony Kennedy and David Souter–joined forces to articulate a new standard that states could impose restrictions on abortion, before the fetus could live outside the womb, to protect a woman’s health or the life of the fetus. But those restrictions, the justices said, could not amount to an “undue burden” on a woman’s right to choose.
“The Casey opinion set Roe in more concrete–or it at least raises the bar of what you’d have to get over,” Sekulow said. “I’m not losing hope that it will be overturned, but I don’t think abortion as we know it is going to be outlawed.”
Instead, abortion opponents have shifted their focus to new legal frontiers. Sekulow said he is optimistic that Congress will pass a federal ban on late-term abortions, and Bush has indicated he will sign it.
Northup, anticipating that law, said her group is prepared to sue to block it. She said she believes it will be similar to the Nebraska ban on late-term abortions that the court invalidated in 2000. Nebraska Dr. Leroy Carhart challenged that law as unconstitutional.
The court struck it down as an undue burden on a woman’s right to choose because the law was so broadly and vaguely written that it would ban other types of abortion. Moreover, it did not allow doctors to perform the procedure to protect the mother’s heath.
The decision sharply split the three justices who joined forces in the 1992 case, with Kennedy in sharp dissent on whether the Nebraska law was, in fact, an undue burden. He accused the court of misapplying the 1992 case and was particularly critical of O’Connor, generally viewed as a fellow moderate.
Kennedy’s position in the case has convinced Northup and others that Roe is in danger and that four justices would like to overturn it.
But others note that Kennedy’s dissent did not call into question his position in 1992, when he refused to overturn Roe. What’s more, even if Kennedy had a change of heart, the court still would be one vote short of overturning Roe. To get that vote, a justice who supported Roe would have to retire and be replaced by one with opposing views.
As Republican presidents well know, it is not so easy to predict how justices will rule: Souter, O’Connor and Kennedy all were nominated by Republicans, as was the court’s most liberal member, Justice John Paul Stevens.
“Our side is starting to understand, it’s not that the president makes an appointment and we’re there,” Sekulow said.
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30 years since Roe vs. Wade
KEY LEGISLATION, OTHER ACTIONS
In 1970, Norma McCorvey (a.k.a. Jane Roe), an unmarried pregnant woman in Texas, challenged a state law forbidding doctors to perform an abortion unless a woman’s life was at risk. In a landmark 1973 ruling, the U.S. Supreme Court legalized abortion under the right to privacy. Since then, however, the court’s ruling has been narrowed by other court decisions and federal legislation.
1974: Federally funded research using ‘fetal tissue is prohibited through the National Science Foundation Authorization Act.
1976: Congress passes the Hyde Amendment, banning the use of Medicaid and other federal funds for abortions. The legislation is upheld by the Supreme Court in 1980.
1993: President Bill Clinton lifts the so-called gag rule that forbade doctors in federally funded clinics from mentioning abortion as an option.
2000: The FDA approves the abortion pill, mifepristone (RU-486).
2001: President George W. Bush restricts federal funding to overseas groups that provide or advocate abortions.
KEY COURT DECISIONS
1976: The Supreme Court strikes down a Missouri law requiring a woman to obtain her husband’s consent before having an abortion.
1979: A Missouri requirement that abortions after the first trimester be performed in hospitals is found unconstitutional. Another law mandating parental consent is upheld.
1980: In Harris vs. McRae, the court upholds a federal law banning the use of Medicaid funds for abortions, except when necessary to save a woman’s life.
1983: The court strikes down an Akron ordinance that requires doctors to give abortion patients anti-abortion literature, imposes a 24-hour waiting period, requires abortions after the first trimester to be performed in a hospital, requires parental consent and requires the aborted fetus to be disposed of in a “humane” manner.
1989: In Webster vs. Reproductive Health Services, a law in Missouri declaring that “life begins at conception” and barring the use of public facilities for abortions is found constitutional. It marks the first time the Supreme Court does not explicitly reaffirm Roe vs. Wade.
1992: In Planned Parenthood vs. Casey, the court reaffirms Roe’s core holding that states may not ban abortions or interfere with a woman’s decision to have an abortion. The court does uphold mandatory 24-hour waiting periods and parental-consent laws.
1997: The Supreme Court upholds a buffer zone prohibiting all protests within 15 feet of an abortion clinic.
2000: The Supreme Court strikes down a Nebraska ban on late-term abortions, rendering similar bans in more than 30 states void.
Sources: Planned Parenthood Federation of America, National Abortion and Reproductive Rights Action League, Center for Reproductive Law and Policy
— Chicago Tribune
