Taking Roe Back to Its Authors

ELLEN GOODMAN

November 29, 1991|By ELLEN GOODMAN

BOSTON. — Boston -- Kathryn Kolbert likes to say that politics and law are a lot like Sesame Street: ''You have to learn how to count.''

She didn't get this tip directly from Bert and Ernie but from her experience as an attorney defending abortion rights. There are certain numbers that seem especially unlucky for any pro-choice calculator this year.

Take the number 12. Last week the House came up 12 votes short of being able to override President Bush's veto and protect the right of a doctor to talk freely to a poor client considering an abortion.

Take the number 600. That's about how many new restrictive laws state legislatures have passed since the Webster decision allowed them greater leeway.

Take the number four (Please). That's the margin in the Senate that confirmed Clarence Thomas to a deciding seat on the Supreme Court.

Now Ms. Kolbert's counting has turned to a countdown. The ACLU lawyer is the lead attorney on a case heading down the fast track to the Supreme Court.

It comes with a petition that asks the justices to say once and for all: Has the Supreme Court overturned Roe v. Wade? Is abortion still a fundamental constitutional right in the United States?

This question has been simmering since Presidents Reagan and Bush began appointing new members to the highest bench.

The new court hasn't killed the right established by Roe v. Wade, but is nibbling it to death. Indeed in 1989, the Webster decision virtually invited the states to start chomping.

Now abortion-rights groups have said, Enough. In Ms. Kolbert's words, ''It is time to force the court to say whether or not Roe remains the law.''

The case that raises that issue is Planned Parenthood v. Casey. This case began in the Pennsylvania legislature. In 1989, the legislators voted in favor of a law that restricted abortion by, among other things, requiring a mandatory waiting period, state-written counseling, parental consent and husband notification.

On October 21, the 3rd Circuit Court of Appeals upheld every restriction except the one forcing women to tell their husbands. More importantly, the court based its ruling on the belief that Roe v. Wade had already been gutted.

Abortion, they said, was no longer a fundamental constitutional right, but rather a ''limited fundamental right.'' This ''right,'' in other words, could be limited by any law a legislature passed and a court thought was ''reasonable.''

Until now, abortion-rights advocates -- carefully counting the numbers on the Supreme Court -- have tried to avoid a showdown over Roe. It was always the anti-abortion forces that asked for a review of the seminal case. Pro-choice advocates figured women were better off clinging to whatever they could grasp while the cliff eroded under them.

Now, Ms. Kolbert's clients, the clinics and doctors who provide abortions in Pennsylvania, have said, ''We're tired of dying gracefully. It's time for the court to decide.''

By petitioning the court for a review, they are risking an earlier and full reversal of Roe. But as Ms. Kolbert says, any woman within the jurisdiction of the 3rd Circuit Appeals Court -- Pennsylvania, Delaware and New Jersey -- has already lost a fundamental right.

The reality is that pro-choice supporters can't, uh, count on the court. The abortion issue has gradually but inexorably moved out of the legal system and into politics. So now the most important number on the minds of the groups pushing for a definitive answer from the Supreme Court is 1992.

This case is the only one challenging Roe that could get to or through the Supreme Court this election year.

If the state of Pennsylvania decides next week to join the issue and keep to a speedy timetable, the issue of abortion is going to be front and center in every race.

''I think most people have a hard time believing that the Supreme Court could take away a constitutional right,'' says Ms. Kolbert. ''When I say to young women, 'Do you believe that the court could take away the right to birth control and abortion?' there's a disbelief that permeates their world.''

If the justices, after all, overturn Roe -- the bedrock of privacy decisions -- the right of a woman to decide is going to land squarely in the laps of legislators.

And 1992 could be the year when many politicians discover their number is up.

Ellen Goodman is a syndicated columnist.

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