WASHINGTON -- At first blush, it would appear that conservative Supreme Court Justice Byron R. White's decision to retire means the long controversy over abortion rights will at last be shunted to the sidelines, with President Clinton expected to fill the vacancy with a pro-choice nominee.
The president in his news conference the other day said he wouldn't ask any nominee how he or she would vote on a particular issue. But he made clear he would want him or her to be a strong protector of the individual's rights of privacy. That is the strongest indication that he will seek to replace White, one of the two original dissenters in the landmark Roe vs. Wade case and a consistent advocate of overthrowing that decision, with a defender of abortion rights.
But the legal battle over abortion is certain to continue, both sides agree. Kate Michelman, president of the National Abortion Rights Action League (NARAL), and Bob Jewett, national media coordinator for Operation Rescue, the militant foe of abortion clinics, both say they anticipate no diminution of legal and psychological warfare.
Even with an abortion-rights advocate replacing White, Michelman notes, her camp would have only three firm defenders of Roe, the other two being Justices Harry A. Blackmun, whose retirement is expected in another term or so, and John Paul Stevens. And while Roe has survived all attempts to dump it, the erosions suffered from the present court have persuaded the abortion-rights side to turn to the legislative front.
The Freedom of Choice Act now making its way through the House and Senate attempts to take the matter out of the court's hands once and for all, by mandating a woman's right to choose in federal law. Michelman says the election of more women to Congress, and of pro-choice men, gives the legislation its best shot. "Most members of Congress understand," she says, "that the court is the slowest political institution to change," and are not going to wait for Clinton to change it on this issue with more pro-choice jurists as the opportunity arises.
Michelman argues that for the same reason the Voting Rights Act was needed to force states to comply with civil rights decisions in the 1960s, the Freedom of Choice Act is imperative today to prevent states from nibbling away further at Roe vs. Wade.
OC Jewett for Operation Rescue takes a sarcastic view of Clinton's
likely replacement for White. He quotes the observation of his leader, Randall Terry, that "it may be hard to find a multicultural, politically correct, child-killing, lesbian, spotted owl to fill the vacancy, but Clinton will try." But Jewett's organization may have more to worry about in Congress, where if Michelman is right the cause of abortion rights has added steam this year.
In addition to the Freedom of Choice Act, NARAL and other women's groups are pushing legislation that would overturn the narrow 5-4 Supreme Court decision -- with White voting in the majority -- that bars the use of federal civil rights laws to protect women from groups blocking entry to abortion clinics.
The recent fatal shooting of Dr. David Gunn as he attempted to enter an abortion clinic he had opened only a month earlier in Pensacola, Fla., Michelman says, has underscored the urgency of this legislation.
Jewett says that while "we condemn the killing of any life, this was in no way our fault," and should be compared with "the 4,400 children who die each day in abortion clinics."
The comment confirms that passions remain white-hot over the abortion issue, guaranteeing strong opposition not only to the pending legislation but also to the confirmation of White's prospective successor if he or she supports abortion rights, as now seems certain.
So White's departure, while welcomed in the abortion-rights camp, is clearly not seen as anything approaching the end of the war.
While some women's groups are clamoring for the nomination of a second woman to the Supreme Court, Michelman says all that matters is that the nominee is pro-choice.
That attitude gives Clinton some latitude in making his selection, but not on the basic litmus-test issue facing him.