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Time Runs Out for Roe : The Courts are Only a Formality; for Many Women Choice is no Longer an Option

April 26, 1992|Susan Estrich | Susan Estrich, a law professor at USC, served as campaign manager for Michael S. Dukakis in 1988.

Roe vs. Wade is dead. Whether the Supreme Court finally overrules it--this year or next--is a formality, the signing of a coroner's certificate. Roe will not be lost in the courts, because it has already been lost on the streets.

In much of America, there is no right to abortion. In 83% of all counties, there are no clinics or hospitals willing to perform an abortion. Second-trimester abortions--even when the mother is seriously ill, or the fetus will not survive--are still harder to come by. There's one place in Southern California that I've heard of, and one in Boulder, Colo.--but neither has a sign on the door, and they certainly don't invite publicity.

The only doctor who performs abortions in South Dakota works in a cinder-block office, protected by alarms and bulletproof windows. The only doctor who performs abortions in North Dakota lives in Minnesota. The number of hospitals offering abortions dropped 50% from 1977 to 1988, while only 13% of the nation's residency programs now train young doctors to perform first-trimester abortions.

Meanwhile, the justices of the U.S. Supreme Court deliberate on yet another abortion case--which will, no doubt, curtail access to abortion even more, while paying lip service to the tattered remnants of Roe vs. Wade. After all, this is an election year.

Judges and politicians have certainly played an important role in stripping American women of their right to privacy. Courts have upheld restrictions on the use of public funds and public hospitals, effectively blocking access for poor women. As far back as 1979, they upheld restrictions on the rights of minors to have abortions. They also tolerated a variety of consent rules and record-keeping requirements that increase the cost of abortions, albeit fewer than those Pennsylvania will almost certainly be permitted to impose by the Supreme Court.

The tactic of making access most difficult for women with the least power--the young, the poor, women who don't have private physicians willing to help--has been politically and judicially encouraged. If middle-class women had lost their rights first, it would be another story.

But at least laws are passed by democratically elected majorities. What is most pernicious about the loss of abortion rights in this country is the extent to which it has been a triumph of a small minority--elected to no office, appointed to no court--practicing the politics of coercion, with a wink and a nod from those who should know better.

Doctors have a right not to perform abortions, if doing so would violate their own moral precepts. But there is no evidence that the medical profession woke up one day and decided, en mass, not to perform abortions for moral reasons. The dearth of doctors is not a product of moral debate but, by all accounts, of fear. Terrorism works.

I don't blame young doctors for refusing to perform abortions--I'm not sure I'd have the courage to face the threats and pickets, let alone expose my family to them. But you shouldn't have to be a hero to be a gynecologist.

Last summer, when the anti-abortion extremist group Operation Rescue moved into Wichita, Kan., a courageous federal judge say his job as protecting the constitutional rights of those choosing abortion. The Bush Administration disagreed. They filed briefs in court arguing that there is no basis for federal courts to protect federal rights against trespassing protesters. The case is now in the Supreme Court. Abortion-rights activists know what that means.

Last week, when Operation Rescue moved into Buffalo, N.Y., invited by that city's mayor to violate its laws, abortion-rights activists were not relying on the courts or the politicians to keep the clinics open. They've formed human rings of their own, proving two sides can play this ugly game. I would hate to be a 15-year-old, pregnant rape victim in Buffalo.

But you can't form human rings around every doctor's office and every hospital in America. Operation Rescue is not going away. Louisiana, Idaho and Guam have already passed laws even more restrictive than Pennsylvania's. The real question in this election year is not whether the court will formally overrule Roe vs. Wade--it will, but probably next year in the Guam case--but whether the majority in this country will use their ballots to take control back from the gangs now terrorizing doctors, frightening women and denying basic rights.

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