Election victory for abortion rights may provoke opposite reaction from courts

LAW IN PERSPECTIVE

September 16, 1990|By LYLE DENNISTON | LYLE DENNISTON,Lyle Denniston is The Sun's legal correspondent in Washington and makes his base at the Supreme Court.

Maryland's election results, in a variety of contests in which abortion was the dominant issue, have an ironic twist to them. They are a reminder of this seemingly topsy-turvy notion: The better that abortion rights forces do at the polls, the less likely it nTC that abortion rights will continue to fare well in the courts.

Abortion rights forces did not sweep all of their adversaries out of office in Maryland last week, but they came remarkably close. At the very least, they demonstrated that they can use that issue to devastating effect politically -- especially in state legislative races.

And, if judges really do follow the election returns (as almost everyone believes that they do), it might be supposed that the message they would get from Maryland would be loud and clear: Don't mess with abortion rights.

Politicians across the nation, of course, almost certainly will be reading the message that way. The governorship races in Virginia and New Jersey last year sent them a similar message, and that message is still reverberating. Few legislatures were willing to pass tough new anti-abortion laws. And, when they did, governors in Idaho and Louisiana vetoed the new abortion restrictions, presumably because of that message. The governor Guam is now under heavy political pressure not to appeal a recent court ruling nullifying the territory's new anti-abortion law.

But the reaction to political messages like that sent in Maryland this week and in Virginia and New Jersey last year may well be quite different in the nation's judiciary. In fact, there are judges -- and they may be quite numerous -- who will read the political signals in just the opposite way.

That is not because judges are rebels on the bench, stubbornly bent on doing just the opposite of what politics supposedly suggests or even mandates. Rather, it is that the political dynamic of abortion has a telling impact on the view that some judges take of abortion as a constitutional matter.

Simply put, it will be easier for moderate judges to join their conservative colleagues in further weakening or casting aside aside the key Supreme Court decision on abortion, Roe vs. Wade, if it becomes clear to them that politics can be a workable substitute for the Constitution in sorting out the whole problem.

And, to moderates, that means that politics would not return the issue to pre-Roe days -- that is, it would not lead to legislatures that would criminalize all abortions.

It is a fact of judicial life that judges do pay attention to what happens in the political realm beyond the courthouse, and that that does have some, usually indefinable, influence on how they decide some constitutional questions.

It is a further fact that, at least among moderate judges, there is a tendency to see the courts as a backup or corrective governmental mechanism if a major social question is being dealt with only at the extremes in politics.

Some notion of "compensatory justice" lies behind that tendency. Many a moderate judge would be quite uncomfortable turning away a litigant who had absolutely no hope of gaining (or maintaining) rights through political action.

That discomfort almost certainly would be present among several of the justices (one thinks immediately of Justices Anthony M. Kennedy and Sandra Day O'Connor), if the Supreme Court were to confront, face to face, the question of voting up or down on Roe vs. Wade -- that is, voting to keep it, in some form, or voting to overrule it altogether.

That question carries with it an even more basic and uncomfortable question: Would the court be ready to take away, for the first time in its history, a constitutional right that it had created itself -- moreover, a constitutional right that women have now had for more than 17 years? The answer for the moderates might well be: yes, if politics can handle it, in some way that can be expected, reliably, to be "reasonable."

When the Supreme Court last spoke directly on Roe vs. Wade, a year ago, three of the nine justices -- including Justice Kennedy -- said they were prepared to cut back sharply on Roe's protection of abortion rights. (Justice O'Connor was not in that group.)

But, quite significantly, the opinion for those three justices contained this revealing comment: "The suggestion ... that legislative bodies, in a nation where more than half of our population is women, will treat our decision as an invitation to enact abortion regulation reminiscent of the dark ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them."

The experience since then in the majority of state legislatures, and in key governors' mansions, and in a goodly number of election races, seems to be that that kind of expectation for the political realm may not have been misplaced.

That faith is very likely what made it at least fairly comfortable for Justice Kennedy to join in the court's decision to cut back on Roe's protection.

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