Politics as well as law fuels fight for Roe vs. Wade test

November 10, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Any major case on abortion that reaches the Supreme Court these days could be the one that tests Roe vs. Wade to the ultimate. The case that might do it is now there.

The case of Planned Parenthood of Southeastern Pennsylvania vs. Casey, filed at the court last week, has emerged from 18 years and 10 months of legal combat over Roe to become the potential make-or-break case.

There was a note of irony as the Pennsylvania case reached the court. It was in another case from the same state, five years ago, that the Roe precedent had reached its highest and most powerful point -- a sweeping ruling in favor of very broad abortion rights, upheld by a mere 5-4 majority.

Roe's long-term fate has been in doubt since that 1986 ruling, with anti-abortion forces working doggedly and with increasing optimism to complete a campaign to overturn Roe -- a campaign that began just two days after the court had ruled on Jan. 22, 1973, that the Constitution includes a woman's right to choose to end a pregnancy.

The nation as a whole had hardly begun to understand what Roe meant -- to pregnant women, to law, to politics -- when the Roman Catholic bishops in the United States began the effort to get it overturned. A Jan. 24 statement of the Committee for Pro-Life Affairs of the National Conference of Catholic Bishops declared:

"Every legal possibility must be explored to challenge the opinion of the United States Supreme Court . . . that withdraws all legal safeguards for the right to life of the unborn child."

In the years since, a constitutional amendment would be attempted repeatedly, only to fail each time; hundreds of anti-abortion bills would be considered in state legislatures; an entire community of activists that did nothing but focus on abortion -- "pro" or "con" -- would develop and enlist tens of thousands of followers; politics would be roiled by the issue in every campaign, and the issue would itself be decisive at times; and case after case would go to the highest court, seeking to test Roe.

It often was unclear, in this angry controversy, where the fight over law stopped and the one over politics began. Lawsuits were designed to influence politics, and politicking on the issue was aimed at influencing the justices.

The way a future justice of the court might vote on Roe vs. Wade became a dominant, and sometimes the only, issue in the Senate when a new member of the court was being reviewed. It was the only issue, for example, surrounding the nomination of the only woman ever to sit on the court: Justice Sandra Day O'Connor.

In a maneuver last week that those involved made clear had been driven as heavily by political concerns as by constitutional interests, groups strongly favoring Roe and the fundamental right it declared chose to risk putting Roe's fate directly to a test at the court.

The Pennsylvania case makes it clearer than ever before that law and politics on this issue have become inextricably mixed.

One key goal of appealing that case to the court now: to be able to tell the American people during the 1992 presidential and congressional campaigns that abortion rights are in serious trouble, that the court was poised to scuttle Roe, and thus that politics might be the only rescue left.

In a remarkably spare legal document -- containing only eight short pages of legal argument -- those organizations made a formal plea for the court to answer what a lawyer involved stressed was "one question and only one question to the nine justices: Has the Supreme Court overruled Roe vs. Wade?"

That document had an unusually candid reminder for the court that law and politics were truly mingled in this ultimate Roe controversy. It told the justices:

"This court must now decide whether women's childbearing choices are worthy of the highest level of constitutional protection.

"If the answer is yes, the public and this court must ensure that all women can exercise this liberty, free of governmental interference and in dividual harassment.

"If the answer is no, American women must look elsewhere for redress."

Asked about the political dimensions of the decision to put the Pennsylvania case before the court quickly, Faye Wattleton, president of the Planned Parenthood Federation of America, said: "It is better for women that the decision gets made as quickly as possible."

xTC An American Civil Liberties Union lawyer involved in the case, Kathryn Kolbert of Philadelphia, said her clients -- five abortion clinics and a doctor -- desired a swift test, and the lawyers themselves "were clear: We need clarity from the court, we need it to say as soon as possible" what Roe's fate is to be.

The clear implication of the comments by Ms. Wattleton and Ms. Kolbert was that, if the fall of Roe is to be dealt with politically, it must fall soon.

As things now stand, the Pennsylvania case will be awaiting action by the Supreme Court through the next few months as the presidential primary season gets into gear.

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