Could This Be the Year?

CHRISTIANITY TODAY/April 7, 1989

Supreme Court observers say the 1973 Roe v. Wade decision could be restricted—and perhaps overturned—this term.

In 1983, Supreme Court Justice Sandra Day O’Connor wrote that the framework of the Roe v. Wade abortion decision was “on a collision course with itself.” Court observers agree that the crash O’Connor envisioned may soon occur.

Later this month, the high court is expected to hear oral arguments over the constitutionality of a Missouri law that places certain regulations on abortions. Within the context of the case, the Bush administration has asked the Court for a “reconsideration” of the Roe decision. As the justices prepare to take up the controversial issue, abortion advocates and opponents alike have been engaged in a contentious public-relations battle around the future of Roe and the implications of any changes to current abortion policy.

High Stakes

At issue is the 1986 Missouri law being considered in Webster v. Reproductive Health Services. Among other things, the statute banned public funds, facilities, or employees from being used to counsel in favor of abortion or to perform medically unnecessary abortions; required tests for fetal viability at 20 weeks of gestation; and required that abortions after 16 weeks of gestation be performed in a hospital. In addition, a preamble to the law asserted that life begins at conception and states have an interest in protecting viable unborn life. Last July, the Eighth Circuit Court of Appeals ruled those provisions unconstitutional.

The Supreme Court’s original Roe decision recognized that states may “properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” However, since Roe, the Court has consistently struck down state laws regulating abortion, prompting Chief Justice Warren Burger to note in 1986 that “abortion on demand” was the policy being set forth by the Court.

Conventional court wisdom suggests there are a number of avenues the justices could take in reviewing the Webster case:

• Uphold the lower court’s decision that the law is unconstitutional. If this happens, current abortion policy will basically remain unchanged.

• Rule that some or all of the provisions in the law are constitutional, but not address the larger question of the validity of the Roe decision. According to Tom Glessner, executive director of the Christian Action Council (CAC), in this scenario Roe would still “begin to crumble because other states will begin to pass similar legislation, and eventually one of those will directly challenge Roe v. Wade.”

• Uphold the Missouri law and either implicitly or explicitly overturn Roe. In this event, individual states would once again have the authority to dictate abortion policy. The complicated legal issue here would be whether states would automatically revert to the pre-Roe law or make new policy. Many states have repealed old abortion laws, and some have passed “contingency laws” in the event that Roe would be overturned. “It all depends on what the Court says,” said Paige Cunningham, staff counsel with Americans United for Life (AUL).

• Uphold the Missouri law and give the unborn constitutional rights under the Fourteenth Amendment. This would essentially end all abortions in the United States, except in cases where the life of the mother is in danger. Several prolife groups have filed briefs asking the Court to take this step, but most concede it is extremely unlikely that the current Court would reach that far beyond the case at hand.

Legal scholars predict it is most likely the Court will limit itself to allowing some regulations on Roe, but no one is throwing out the possibility of a reversal. Cunningham said she is becoming more hopeful that the Court will address Roe in some way. Recently, she noted, the justices discussed two pending abortion cases, but took no action. “That suggests to me they will make their decision in Webster and then remand the other two cases to be considered in light of their decision in Webster,” she said. Even Justice Harry Blackmun, author of the Roe decision, acknowledged last fall that “there’s a very distinct possibility that it will [be overturned] this term.”

Some observers say the Court may be reluctant to reverse itself on Roe because of the legal principle of stare decisis—or precedent. In a press memo, Planned Parenthood vice-president for communications Douglas Gould noted that Roe has been cited in more than 1,200 federal court rulings and 850 state court decisions. Yet Cunningham and the AUL argue that the doctrine of precedent does not apply in the case of Roe. Besides, Cunningham said, “The Court has reversed itself an average of once every two years.”

Court Activity

Other Supreme Court cases of interest to Christians include:

Pornography. The justices ruled that state prosecutors may use antiracketeering laws to crack down on X-rated bookstores and other pornographic businesses—provided a judicial determination that the materials sold were obscene is first obtained. In a set of cases from Indiana, the high court, by a 6-to-3 vote, decided that the Constitution does not prohibit imposing stiffer antiracketeering penalties on pomographers, provided that “rigorous procedural safeguards” are employed. Twenty states have antipornography laws patterned after the federal Racketeer Influenced and Corrupt Organization Act (RICO).

Religious tax exemptions. The Court ruled 6 to 3 that a Texas law exempting Bibles and other religious literature from state sales tax was unconstitutional because it unfairly favored the religious literature over other publications. The justices said the law, which expired two years ago, “effectively endorse[d] religious belief.”

Free exercise. The Court heard oral arguments on whether Illinois could deny unemployment benefits to William Frazee after he turned down a job that would have forced him to work on Sundays against his Christian beliefs. The state refused to grant Frazee the benefits because he said his beliefs did not come from a church that he belonged to. Rutherford Institute attorneys representing Frazee argued that the First Amendment protects an individual’s beliefs even if those beliefs are not tied to an established religious body.

Parental consent. The Court cleared the way for Kentucky to begin enforcing a 1986 law requiring parental consent or judicial approval for a minor’s abortion. Several abortion advocates are challenging the constitutionality of the law in the lower courts and had asked the Supreme Court to block implementation of the law until the case is reviewed. Without comment, the Court refused the request.

Evangelists. The Court rejected a request by Jimmy Swaggart that the justices block a defamation lawsuit being brought against him by fellow evangelist Marvin Gorman. Swaggart had argued that the suit unconstitutionally gets the courts involved in church discipline.

What If?

Both sides of the battle are already making preparations for whatever the Court might do. “If Roe is overturned, the first place we’re going to go is the Congress,” said Planned Parenthood’s Gould. Douglas Johnson, legislative director for the National Right to Life Committee (NRLC), agreed that the issue would be very “contentious” in Congress. “It would also continue to come up in other ways, such as fetal-tissue experimentation, federal funding, … things that won’t go away if Roe v. Wade is overturned,” he said.

Both sides are also beefing up their state and local forces in the event the states are given control over the issue. Prochoice people believe many states would not outlaw abortion. “We are not going to see the clock turned back,” said National Organization for Women president Molly Yard. “We will not allow any woman or girl to give up her life through back-alley abortions.”

Tom Glessner of the CAC said he is “very concerned” that the prolife movement is not prepared on the state level. “I’m afraid many Christians will sit back and think we’ve won, when they don’t realize that maybe the war has just begun,” he said. Also, Glessner asks whether the church is “ready to handle 1.5 million women who would have been aborting, but because abortion is against the law and not available, will be carrying to term.” The CAC currently has 400 Crisis Pregnancy Centers around the country and hopes to have 600 by 1992. However, Glessner said, “That may not be sufficient” if Roe is overturned.

In the meantime, both advocates and opponents of abortion have been attempting to sway the Court and public opinion. Planned Parenthood and other prochoice groups have been placing expensive “keep abortion safe and legal” ads in the national media. This week feminist and proabortion groups have planned a massive march on Washington to demonstrate “solidarity” on the right to abortion. These groups have also presented numerous briefs to the Court urging that the justices not restrict or overturn Roe.

Prolife groups have been conducting their own strategies. The CAC is countering the April 9 proabortion rally by calling on churches to make it a day of prayer and fasting. The Court also received a flood of prolife briefs.

Among the groups urging the justices to take prolife action were the Lutheran Church-Missouri Synod, the National Association of Evangelicals, the Southern Baptist Christian Life Commission, the National Prolife Religious Council, Orthodox Christians for Life, the Family Research Council and Focus on the Family, the International Right to Life Federation, the U.S. Catholic Conference, CAC, AUL, the Christian Legal Society, and 110 members of Congress.

After the Court hears oral arguments in the case, a decision will be handed down before July 1.

By Kim A. Lawton.

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