As the Supreme Court deliberates the future of a constitutional right to abortion, prolife and prochoice activists are marshaling grassroots forces in efforts to capture national momentum on the issue. Both sides are already bracing for a Court decision, due this summer, that likely will do little to resolve the national argument over abortion but is sure to add fuel to election-year flames.
Last month the justices heard oral arguments in Planned Parenthood v. Casey, the highly publicized case that could strike the most serious blow yet to Roe v. Wade, the 1973 decision that legalized abortion. At issue is a Pennsylvania law that places several restrictions on abortion, including a mandate that doctors tell women about the risks and alternatives to abortion at least 24 hours before the procedure is performed; a provision requiring parental consent before a minor’s abortion; a requirement that wives notify their husbands before an abortion; and a provision compelling abortion providers to file confidential reports to the state on each abortion performed.
During arguments before a packed courtroom, American Civil Liberties Union attorney Kathryn Kolbert urged the Court to reaffirm its Roe decision in full. “Never before has this Court bestowed and then taken away a fundamental right,” she said, adding that “once this Court removes [abortion’s] fundamental status, there is no logical stopping point” to the constitutional freedoms that will be imperiled.
Kolbert devoted the majority of her arguments not to the Pennsylvania law, but to the future of Roe itself. At one point, she drew a gentle rebuke from Justice Sandra Day O’Connor, who asked if the attorney planned to address any of the specific issues in the case.
“Pennsylvania’s onerous restrictions must fall,” Kolbert replied, and then returned to her assertion that “to abandon heightened review [of any abortion restriction] is to overrule Roe.”
Pennsylvania Attorney General Ernest Preate defended the statute. He argued that the justices could uphold his state’s law without ruling on the fundamental status of abortion. “Roe v. Wade need not be revisited by this Court, except to reaffirm that Roe did not provide for an absolute right to abortion on demand,” he said. The attorney was interrupted by Roe’s author, Justice Harry Blackmun, who noted that Roe did not explicitly provide for abortion on demand, and appeared defensive and sarcastic as he asked Preate, “Have you read Roe?”
Also supporting the law was U.S. Solicitor General Kenneth Starr, who argued that states have a “compelling interest in protecting potential life throughout pregnancy.” Justice John Paul Stevens repeatedly questioned Starr about whether that meant the U.S. government believes an unborn child is a person. “We do not have a position on that,” Starr answered.
At several points during the arguments, O’Connor asked the lawyers if they thought the provision compelling a woman to notify her husband before an abortion violated freedom of speech. “I would have thought it would get us right into First Amendment concerns,” she said, leading some observers to speculate that she might avoid the abortion issue and depend on other fundamental rights in deciding some parts of the case.
The Court’s decision is expected before the justices recess for the summer in early July. And even if the justices do not overrule Roe in this case, another opportunity may soon be waiting in the wings. Late last month the U.S. Circuit Court of Appeals struck down Guam’s 1990 law banning all abortions except when the life or health of the mother are “gravely impaired.” The next court of appeals would be the U.S. Supreme Court, if it chooses to accept the case.
To The Grassroots
Prochoice leaders have been openly pessimistic about their potential for victory in the courtroom. But far from conceding defeat, they have taken their arguments to the streets. Early last month more than 500,000 abortion-rights supporters rallied in Washington and pledged to intensify their political efforts to sustain the right to abortion. “Abortion on Demand Without Apology,” read one popular sign at the April 5 demonstration. According to the Metropolitan Police, the “We Won’t Go Back March for Women’s Lives” was one of the largest political rallies in Washington’s history.
Prolifers conceded the numbers were impressive but pointed to a Washington Post article that suggested the march “failed to attract a diverse crowd.” A survey conducted by the Post found the opinions of march participants varied widely from a national sample of Americans. For example, while 95 percent of the marchers believed abortion should be legal if the parents do not want another child, only 35 percent of the general public agreed.
A new prolife coalition is also challenging the breadth and depth of support for the prochoice position among American women. At a news conference last month in the National Press Club, 15 women of diverse political, religious, professional, and racial backgrounds announced the formation of the National Women’s Coalition for Life.
“Within [this coalition] is a place for all women who realize that when society’s answer for families in distress and women in crisis is to encourage them to dispose of their children, something is drastically wrong,” said spokeswoman Irene Esteves.
Meanwhile, in Buffalo, New York, the pitch of the street battle rose measurably as abortion advocates faced off against Operation Rescue’s “Spring of Life” campaign, an effort similar to the one conducted in Wichita last summer. However, as the Buffalo campaign got under way last month, prochoice opposition appeared much stronger and better organized than in Wichita. Several ugly confrontations that featured shouting, spitting, pushing, and shoving resulted. And in several incidents, punches were thrown.
