Appeal case aims to curtail women’s access to abortion

Press, 28 April 1989, Page 10

Appeal case aims to curtail women’s access to abortion

Keith Botsford,

of the ‘lndependent,’ analyses a

contentious issue before the U.S. Supreme Court

ON APRIL 8 and 9 350,000 women, many of them wearing wire clothes hangers round their neck (to represent the ancien regime) descended on Washington. Planned by the National Organisation of Women (NOW), the march was_ the expression of a great fear convulsing the sisterhood of liberated America: that the Supreme court mightgo back on Roe v. Wade, the landmark decision striking down a Texas statute making it a crime; to "procure ... or attempt an abortion.” 1

“Jane Roe,” the female equivalent of “John Doe”, was in reality Norma McCorytofcShe was 22, a school-lea ver atrii and pregnant for the second “time (her first child was raised in its grandmother’s custody) ?In. ; 1970 she agreed; to let two Texas lawyers in-search of a test-case make her;a: legal guinea-pig? It is a debate that arouses very deep feelings in America., Violence hss ? ensued. Two abortion clinics in Florida were sit-on fire; in California, on' Easter week-end, more than 700 prjo-llfe members' of Operation/Rescue were ./arrested. Ideology;/ has entered s -the language? clinics have become “abortuarles,” the escorts who accompany clients to the’ clinic are "deathscorts.”

The ’ Supreme Court js to hear arguments in Webster-v. Representative Health service. In that case, the petitioner seeks to overturn a Missouri state law which Restricts public funding for counselling and performing abortions. To decide it, the Court must review its 1973 decision in f4Roe v. Wade. That decision centred on the harm to the mother caused by depriving her of the choice of whether or not to bear her child. The majority decision argued: "Specific and direct harm (danger to the mother); a distressful life and future ... psychological harm” (“the unprepared for motherhood”); that “mental and physical health may be taxed by child care” (the penalty of motherhood); and “the unwanted child.”

Roe v. Wade refused to recognise that a woman’s right to terminate a pregnancy “at whatever time, in whatever way and for whatever reason she alone chooses” was absolute. But those specifically denying that a foetus was “a person” entitled to the protection of the law substituted a sort of natal halfway house: viability, which fixed the time at which a foetus could survive outside its mother “at about 10 weeks before delivery.”

This left a lot of unsolved questions. It ignored the fact that the vast majority of 12-week foetuses would be viable if left in the womb until birth. Nor did it address the fact that no human

being is truly viable until it has learned to cope on its own. Least of all did it resolve the question of potentiality. “Who,” asks the philosopher John R. Silber, "would undertake the burden of caring for a newborn infant (if they knew) that it would always remain a neo-natal creature ... were it not for the vision of the adult potential?” During the conservative Reagan years, the underlying political agenda also had to confront such vexing questions as public funding for abortion, and who should establish the law on such a delicate family matter? Mr Justice White, in his dissent in Roe v. Wade, spoke of “an

exercise of raw judicial power”; it "imposed ... an order of priorities on the people and legislators of the states” on “issues oyer which reasonable men may easily and heatedly differ.” Those issues, Mr Justice White asserted, “should be left with the people and the political processes the people have devised to govern their affairs." White is still on the Court. So is Chief Justice Rehnquist, the other dissenter. The April 8 and 9 demo was designed to serve two purposes. First, to dampen the increasing support in middle America for the “pro-life” position. According to polls, approxi-

mately 70 per cent of Americans are against abortion just “on demand,” without any further grounds, while an equivalent majority considers there are certain grounds — rape, recognisable birth defects, danger to the mother’s life — on which abortion is, at least in the first 15 weeks, permissible.

The second purpose was to lobby the Supreme Court, and specifically its one woman member, the Reagan appointee, Mrs Justice Sandra Day O’Connor. Where the march succeeded in focusing the attention on the proabortionist cause and stealing some of Rescue’s media attention, it may signally have failed in its second goal. Lobbying the Supreme Court is just not done.

The Justices, whose task is to interpret the Constitution when other laws conflict with it, are conservative by nature and tradition. It took them 58 years to conclude that “separate but equal” facilities for blacks were not constitutional. Because they are appointed for life, they are also isolated from political pressures. The court tends to catch up with public opinion within roughly a generation.

It is no easy task the Supreme Court is set. For 16 years now, readily available abortion has worked its way into the basic concept of sexuality of a whole generation. It has influenced families, professional options, the economy. To most women, abortion’s availability is simply a given, a “right” The Reagan majority, which is also Bush’s, wants this assumption struck from the books. The women’s movement senses that a possible outcome is that the Court will decide, as Mr Justice White wanted them to do in 1973, that the issue is one to be returned to the people and their legislatures, that a consensus does not yet exist and therefore the nation should be divided (as it was over slavery) from on high.