Supreme Court Strategy Looms Over Nat'l Abortion Standoff
Christine Hall
Staff Writer
(CNSNews.com) - In the 30 years since the Supreme Court handed down its Roe v. Wade ruling, pro-abortion and pro-life activists have clashed over many issues, but the pro-abortion camp has won on most counts. Those "wins" include the legality of abortion itself; the legal status of late-term abortion; and FDA approval of the abortion drug RU-486.
"When you start looking at the partial birth abortion decision, and you realize that even the limitations on the right to an abortion that Roe recognized no longer mean much, then, yeah, this fight, at least for the time being, has been won," said John Eastman, a constitutional law professor at Chapman U. School of Law.
"The fact that ...we are remembering the 30th year since the legalization of abortion means that we haven't done our job," lamented American Life League spokesperson Joe Giganti. "We have not won the overall battle."
People on both sides of the issue remain fearful and hopeful. And both identify the U.S. Supreme Court as the centerpiece of their long-term battle and strategy.
Marjorie Signer, spokesperson for the Religious Coalition for Reproductive Choice, agrees that the abortion rights movement has prevailed, and she attributes their strength to the personal experience of many women who follow their own conscience when confronted with an unexpected or unwanted pregnancy.
But abortion rights advocates such as Signer are afraid of what may come from a Republican president and Congress.
"The Supreme Court is the greatest concern of pro-choice America," said Signer. "The real question is: Will pro-choice senators ...use the filibuster...to stop a nomination? It's not a given at all. Many legislators are not terribly brave on both sides of the aisle."
Eastman agrees that most abortion-related issues hinge on the Supreme Court, namely, who will replace the next retiring justice. Currently, Justices William H. Rehnquist, Antonin Scalia, Clarence Thomas and, possibly, Anthony Kennedy are considered reliable votes for overturning Roe, while the remaining five justices are considered firm votes for upholding Roe.
"At the moment, as a result of the Supreme Court's decision in Stenberg v. Carhart, virtually any state regulation of abortion is going to get struck down by a slim 5-4 vote," said Eastman. The 2000 Stenberg decision effectively invalidated 31 state laws banning late-term abortion.
"Justice [Sandra Day] O'Connor, in joining in that opinion, really ... took the fig leaf off of the claims in Planned Parenthood vs. Casey that some state regulations, particularly of late -erm abortion, would be permitted," said Eastman.
In the meantime, however, abortion supporters and foes continue to skirmish on somewhat lesser issues.
Public opinion
Both sides often claim victory in the court of public opinion.
A December Los Angeles Times poll found that 46 percent of Americans favor legalized abortion, while 37 percent said they oppose it.
But an earlier Pew Research Center poll found less support for abortion in all cases. Only 19 percent said that abortion should be legal in all cases, with the plurality, 34 percent, saying it should be legal in "most" cases.
RU-486
The Clinton administration guided abortion drug regimen RU-486 through the Food and Drug Administration approval process in 2000, making it for the first time legal in the American market. But the Bush administration could choose to reconsider the safety and efficacy of RU-486.
Eastman cautions that it remains to be seen whether "tweaking" the regulatory system in that way will survive court challenges.
"I think [pro-lifers] certainly have an opportunity to get new regulations," he said. "The big question is when you move from the administrative arena to the judicial whether those regulations are going to be of help."
Clinic violence
The U.S. Supreme Court heard arguments in December in a case that bars pro-life activists from protesting outside abortion clinics. In Scheidler v. NOW, the court will examine whether existing interpretation of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) may be used to characterize abortion clinic protests as "extortion." The court will also consider whether judges can impose a nationwide injunction against such demonstrators.
Mexico City policy
Soon after taking office, President Bush reinstated the so-called Mexico City Policy, also called the "Global Gag Rule," which blocks U.S. tax dollars from flowing to foreign, non-governmental organizations (NGOs) that offer abortion services or counseling.
But despite a record that includes more setbacks than big victories, pro-life forces seem to be as optimistic as Signer.
"I don't think they've won," said Giganti; "I just think it's a battle.
"I think that this Congress will be a harbinger of what we can expect in the next couple of years," said Giganti. "We're optimistic and hopeful that it will be one where we see victory."
Eastman is confident for another reason. Pro-abortion forces should expect defeat if their victory is not a just one, he said. "They should have as much cause to be afraid as those who won on the slavery question with the Dred Scott decision or those won on the separate but equal segregation in Plessy vs. Ferguson.
"To the extent their victory is not a just one, I would hope that they would always be concerned that justice will ultimately prevail."
See Earlier Story:
New Partial Birth Abortion Bill Answers Supreme Court (10 July 2002)
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