WASHINGTON -- Congress may soon have to decide whether to legislate abortion rights -- an issue that its members, wary of prodding a hornets' nest, have succeeded in ducking for the last two years.
The "Freedom of Choice Act" -- one of two identical pro-abortion rights bills that have been languishing in House and Senate committees since 1990 -- drew sharp debate in a House Judiciary subcommittee yesterday. Legal experts, legislators and activists sparred over the constitutionality -- and morality -- of such a law.
Hanging over all the wrangling, though, was the knowledge that even if the bill clears the House, survives a likely filibuster attempt and wins approval in the Senate, it is bound to be vetoed by President Bush.
"It will not become law as long as I am president," Mr. Bush declared on Tuesday during a speaking visit to a group of evangelical Christians near Chicago. Even abortion rights activists admit there is probably not enough congressional support for a veto override.
The prospect of forcing the president into a politically volatile move, though, possibly at the height of his re-election effort, is one reason for accelerating passage of the bill, admitted an aide to Democratic proponents of the measure.
Another reason is the belief among abortion-rights activists that some federal legislation must be enacted if, as widely expected, the Supreme Court makes a ruling this summer that would weaken or overturn the constitutional protections for abortion contained in the 1973 judgment in the case of Roe v. Wade.
House Speaker Thomas S. Foley, a Washington Democrat, has predicted that if Roe is upset, Congress will pass the bill this session.
Senate majority leader George J. Mitchell, of Maine, indicated last month that he might support the bill, although he had "serious reservations" about its constitutionality and favored amending the Constitution instead.
A spokesman for the House Judiciary Subcommittee on Civil and Constitutional Rights, which held the hearing yesterday, said there were plans to mark up the legislation by next week and send it to the full chamber for debate soon afterward.
The Senate Committee on Labor and Human Resoures is expected to hold its hearing on the bill next month, about the time women's rights groups hope to stage a mass march in Washington to support the measure.
The Freedom of Choice Act, co-sponsored by roughly one-third of members in both the House and the Senate, would prohibit states from restricting the right of women to terminate a pregnancy before the fetus is viable, "or at any time, if . . . necessary to protect the life or health of the woman."
While several states, including Maryland, have enacted, or plan to enact, legislation in support of abortion rights, others such as Utah and Louisiana have anti-abortion laws.
Attorney General William P. Barr, said in a letter this week to Rep. Henry J. Hyde, an Illinois Republican and a staunch opponent of abortion, that the Freedom of Choice Act would go far beyond the standards set in Roe v. Wade.
"This legislation would impose on all 50 states an unprecedented regime of abortion on demand" which exceeds the requirements of Roe, Mr. Barr wrote.
That interpretation, and other claims by anti-abortion groups -- for example, that the law would preclude parental notification -- are strongly denied by abortion-rights advocates.
"Most of what is said about this law [by anti-abortionists] is political rhetoric with no sound legal base," said Laurence H. Tribe, professor of constitutional law at Harvard University, in testimony before the committee yesterday.
Mr. Tribe argued from commercial law that Congress did indeed have the constitutional right to establish statutory rights over states.
Bans on abortion in some states often forced women to travel to other states where abortion was legal, he said.
There was plenty of evidence, he said, "that restrictions by state or local governments on the ability of a woman to decide whether to become pregnant, or on her ability to decide whether to carry a pregnancy to term, would interfere with freedom of travel . . . and would generate significant burdens on interstate facilities." Hence, Congress had the right to enact legislation for the right to abortion, he concluded.
A professor of law at the University of Notre Dame, Douglas W. Kmiec, an opponent of abortion, disagreed.
"Because [the bill] is a radical extension of the claimed abortion right, and because even the lesser so-called fundamental right to terminate the lives of unborn children invented in the court by Roe is no longer the law of the land," he said, "Congress lacks constitutional authority to enact [the bill]."
The Supreme Court's rulings in Webster v. Reproductive Health Services in 1989 and Hodgson v. Minnesota in 1990 had weakened Roe to the extent that abortion was no longer a fundamental right, Mr. Kmiec said. And under the 14th Amendment to the Constitution, he continued, Congress was only entitled the "authority to enforce, not create, fundamental rights."
In a written statement released during the hearing, Kate Michelman, president of the National Abortion Rights Action League, said that Congress had become "the last line of defense for women and families" in the bid to retain freedom of choice for abortion.
Helen Alvare, information director for the National Conference of Catholic Bishops, said the bill was "the opposite of a human rights policy. It is a policy of official and lethal indifference to a class of human beings."