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Rehnquist And Company: Courting Controversy

July 09, 1989|William Schneider | William Schneider is a contributing editor to Opinion

Abortion may be the Vietnam of the 1990s. For women of child-bearing age, the abortion issue is as personal and as life-threatening as the draft was for young men in the 1960s. Last week's Supreme Court decision rolling back abortion rights was the Gulf of Tonkin resolution. For millions of Americans, this means war.

In war, the first thing lost is neutrality. Politicians who have straddled the fence on abortion for 16 years will find themselves increasingly scorned and isolated.

Vietnam poisoned U.S. politics in two ways. It set liberals against conservatives. And it created mass indignation. The same is likely to happen with abortion.

In the 1960s, it was hawks versus doves. Now it's the right-to-life movement versus the pro-choice movement. Right-to-lifers were invigorated by last week's decision in the Webster case. Pro-choice activists felt threatened. The response is the same on both sides: mobilize.

"It's going to be a bloody battle," a Kansas state senator predicted. California legislators talked of "full-scale war."

Abortion will be a major issue in every election for state and local office. It will play a role in every redistricting decision following the 1990 census. It will cast a shadow over every judicial appointment.

Vietnam poisoned U.S. politics in another way: It produced anger and revulsion in the general public.

Most ordinary Americans were neither hawks nor doves. They just wanted to end the war. Half a million Americans had been sent to fight a tragic and pointless war 10,000 miles away. Vietnam was tearing the country apart.

Most ordinary Americans today have mixed feelings about abortion. They are uncomfortable with both the right-to-life and the pro-abortion position. They don't want to see abortion banned but they don't like it used as a form of birth control.

Right now, polls do not show a high level of public anger, but that is what we will get if courts and state legislatures start doing what the Supreme Court invited them to do--restrict access to abortions. Pregnant women will discover they no longer have any choices. The state will start closing clinics and arresting doctors. The news media will report women dying because of illegal abortions. The public will be outraged, and the issue will tear the country apart.

Americans want the abortion issue resolved. What the court did last week was make that more difficult. The court refused to make a decision either upholding or revoking its historic 1973 Roe vs. Wade decision that defined abortion as a constitutionally protected right.

What the court did was "modify and narrow" the Roe decision. Instead of defining a new status quo, it invited legal challenges. "A plurality of this court," Justice Harry A. Blackmun wrote in a scathing dissent, "implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases."

Actually, the invitation was not so implicit. Here is what the court said:

"The goal of constitutional adjudication is surely not to remove inexorably 'politically divisive' issues from the ambit of the legislative process. . . . The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today."

In other words, abortion rights are subject to regulation by politicians. The court said to politicians, " We're not going to decide the abortion issue--not now. You guys decide. We'll let you know if you go too far."

In the Webster case, Missouri banned abortions in public hospitals. The state also required doctors to perform expensive tests to see whether the fetus was "viable" if a woman was believed to be more than 20 weeks pregnant. Pro-choice groups said Missouri had gone too far. The Supreme Court said, "No. That regulation is just fine. Next case."

Politicians hate the abortion issue. No matter what side they take, they make some people mad. They don't need that kind of aggravation. Last week, the Supreme Court did just what politicians were terrified of--they turned the issue back to the politicians. A pro-choice leader said, "The days when politicians can remain silent on choice end right now." A right-to-life leader said, "They're not going to be able to hide."

Every state legislature now is under pressure. Right-to-life activists are demanding restrictions at least as tough as Missouri's. The Supreme Court has already agreed to hear cases next year that involve costly licensing regulations for private clinics and laws giving parents and spouses the right to veto abortions.

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