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Aborting Abortion Rights — Then and Now

The latest challenge to legal abortions emerged this week from South Dakota’s Legislature, which came within one vote of outlawing abortions and of defining human life as beginning at conception. Doctors who performed abortions or provided drugs to end a pregnancy would have faced five-year jail terms, even if the pregnancy had resulted from rape or incest. The only exception was an abortion to save a mother’s life or spare her from substantial and irreversible physical harm.

It was as in-your-face a gesture as the actions of San Francisco’s mayor on the gay-marriage front. With South Dakota poised to take another try in the coming months — with the full support of Governor Mike Rounds — this plains state joins the City by the Bay as a frontline in the culture wars that will define this year’s presidential election.

But was the South Dakota gesture symbolic, destined to fail in the courts, or a legitimate threat to women’s reproductive rights? And could the election of the next president determine whether abortions remain legal?

The left wing has used the loss of abortion rights as a scare tactic against every Republican nominee since Ronald Reagan in 1980. Conversely, the crusade against legal abortions has mobilized the religious right to support these same Republicans. And yet abortion rights have survived, outlasting two terms of Reagan and four years each of Bush I and Bush II.

Here’s the kicker.

These motivational alarums have been dead-on correct the entire time. Abortions are still legal in the U.S. only because of luck and political timing — which is the next closest thing to luck. And legal abortions might not survive a second round of Bush II.

For proof, turn to the papers of the late Supreme Court Justice Harry Blackmun, which were released this month, exactly five years after his death. Blackmun authored the 1973 Roe v. Wade decision, which invalidated state laws banning abortions. The 7-2 high-court vote, cast mostly by Republican appointees, relied on expanding notions of personal privacy, of medical choice and of women’s rights. To feminists, the vote looked like an inevitable forward march, a natural follow-on from the civil rights struggles, from which there could be no turning back.

Yet anti-abortion forces rallied behind Reagan and the Bushes, who have tried to deliver for them by picking Supreme Court justices likely to overturn Roe. What Blackmun’s papers show is that they nearly succeeded. And “pro-life” forces remain close to doing so today.

 

For the pro-life movement, 1992 looked to be the year. By then, the court had evolved considerably to the right, following the retirements of six of the seven “pro-choice” justices who heard Roe v. Wade. Only Blackmun remained from that earlier majority, while both of the anti-abortion dissenters still held seats.

Reagan had replaced pro-choice Justices Lewis Powell and Potter Stewart with Republicans Anthony Kennedy and Sandra Day O’Connor. And moderate, pro-choice Republican Warren Burger had given way to the more conservative, stridently anti-choice Antonin Scalia. Then, George H.W. Bush supplanted liberals Thurgood Marshall and William Brennan with Clarence Thomas and David Souter. The religious right had every reason to trust that the Roe majority would not be just tipped, but smashed.

The opportunity arrived in a challenge to a Pennsylvania law that restricted abortions. This law required a 24-hour waiting period, the notification of the husband and parental consent for minors, which could be bypassed only by petitioning the court. This case marked the third try at overturning Roe by solicitors general for Reagan and Bush I. On this round, the federal attorney who argued this case for Bush was Kenneth W. Starr, who later gained notoriety as the special prosecutor so determined to nail President Bill Clinton. But in 1992, the goal of Starr and of Chief Justice William Rehnquist, an anti-Roe holdover, was to gut abortion rights.

What happened then, simply put, is that the pro-choice side got lucky: Not all the recent Republican appointees landed on Rehnquist’s side. One defector was Sandra O’Connor, the court’s only woman, who was well-known for some decidedly anti-feminist sensibilities. But not on this issue. And then there was David Souter, who had been branded a “stealth” conservative when George Bush plucked him out of obscurity in New Hampshire. During Souter’s confirmation hearings, senators failed to flush out his views on virtually anything. It turned out that he was not unequivocally anti-choice.

Yet Rehnquist still counted five votes against abortion rights — a slim majority — when he informally polled his colleagues. As Blackmun’s papers make clear, Rehnquist began circulating a “majority” opinion that would have eviscerated Roe without formally overturning it.

Then came an unanticipated change of heart by Anthony Kennedy, a devout Roman Catholic of all things, who suddenly penned a note to Blackmun. “Dear Harry,” he wrote. “I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.” Kennedy reached out to Blackmun, seemingly, for moral support, knowing his decision would subject him to the same hate mail and death threats that arrived regularly for Blackmun, as the author of Roe.

The troika of Kennedy, O’Connor and Souter crafted a middle ground, upholding most of the Pennsylvania law, ruling that it did not place an “undue burden” on a woman’s abortion rights. Most significant, however, the basic right to choose an abortion was preserved. Since then, this compromise has allowed states and the Congress to chisel away at abortion rights, but not to eliminate them altogether.

The year 1992 also saw the election of Bill Clinton, who appointed two pro-choice justices, one of whom replaced the retiring Harry Blackmun. It’s difficult to imagine that abortion rights could have survived another term of Bush I. The Clinton appointees pushed the pro-choice margin to 6-3.

The current Bush hasn’t had the chance to appoint a Supreme Court justice, but there’s little doubt that he’s a more committed conservative than his father, and considerably more inclined to mobilize his right-wing base, as he did recently by calling for a constitutional amendment to ban gay marriage. Long gone are the days when Republican Presidents Eisenhower and Nixon actually appointed some Democrats to the court. For his part, Nixon knew no such animal as a pro-life litmus test. In his pre-appointment chat with Blackmun, Nixon instead asked how much Blackmun was worth and whether Blackmun’s wife could endure the social pressures of the Georgetown set.

How times have changed.

Norma McCorvey, the original Roe in Roe v. Wade, now has joined the other side. A Republican Congress has banned late-term abortions — the same legislation that Bill Clinton vetoed — and that law is currently in the courts. And South Dakota is gunning for the right to end virtually all abortions. Meanwhile, health problems and old age are likely to force several members of today’s court to the sidelines over the next four years. The average age of the pro-choice justices is 71; the oldest is 83. All told, if George W. Bush wins re-election, the foes of abortion, this time, may carry the day.

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