Cover Story

30 years' war

"30 years' war" Continued...

Issue: "30 years of destruction," Jan. 18, 2003

Given the political climate in all three states, Mrs. Balch believes the new laws will probably pass. And when they do, other states may well follow suit. "It's innovative legislation in each case," she says. "Each of them in their own rights can be a standard-bearer for the rest of the country."

Litigate

Thirty times in 30 years the high court has revisited the issue of "reproductive rights," frequently revising its logic without ever completely reversing the ongoing death sentence it issued in 1973. Indeed, a generation after the landmark decision, pro-lifers have had to content themselves largely with chipping away at the formidable legal wall erected by Roe.

For much of the past 30 years, the legal disappointments seemed almost as frequent as the abortion procedure itself. In the first two decades after Roe, the court repeatedly invalidated any state and local abortion restrictions, creating an almost ironclad right to abort, as long as no public funds were involved. In 1987, when a divided Senate rejected Robert Bork for a seat on the Supreme Court largely because of his conservative views on abortion, it looked as if Roe might be untouchable for another 20 years, at least.

But slowly the legal winds began to shift. The first major breakthrough came in 1989's Webster case, when five justices finally voted in favor of a significant restriction on unfettered abortions: They ruled that the state of Missouri could legally require doctors to determine the gestational age of a baby and thus its viability outside the womb. For pro-abortion groups, the Webster decision was a disaster, marking the first time since 1973 that only a minority of justices had voted to uphold Roe.

Pro-lifers received half a boost in 1992, when the Supreme Court, in Planned Parenthood vs. Casey, upheld Pennsylvania's abortion restrictions, including parental notification, a 24-hour waiting period, and mandatory pre-abortion counseling. But the decisions disappointed those who hoped that the court would seize that opportunity to overturn Roe vs. Wade. Four of the justices went further, stating in their decision that Roe had been wrongly decided and ought to be overturned completely-but five said no.

Then came a series of setbacks: The court upheld buffer zones around abortion business entrances, allowed pro-abortion groups to sue pro-life organizations into oblivion, and even overturned Missouri's carefully crafted ban on partial-birth abortions.

Given the high court's recent schizophrenia and its precarious 5-4 split, both sides are eyeing the aging justices with some trepidation. Conventional wisdom says that one of two Republican appointees will be the first to go: Either Chief Justice William Rehnquist, the lone dissenter in Roe still on the bench, or Justice Sandra Day O'Connor, who decided that requiring parental notification was constitutional but banning partial-birth abortion was not.

Without waiting for a change on the Supreme Court, pro-lifers in 2003 will be pursuing multiple legal tracks. Jay Sekulow, chief counsel at the American Center for Law and Justice, says his group is already writing briefs in support of a partial-birth abortion ban. He expects an immediate legal challenge by the National Organization for Women and the National Abortion Rights Action League, and says the Supreme Court could take the case as early as its next term, which starts in October. Another important case, seeking to overturn extortion and racketeering charges against pro-life organizations, should be decided by June at the latest.

As with legislative efforts, much of the litigation in coming years will take place at the state level. ACLJ is arguing numerous "cutting-edge cases" around the country in defense of individual liberty, and particularly in favor of "conscience clause" rules that allow medical professionals to opt out of abortion procedures. Mr. Sekulow cites a Kmart pharmacist who was fired for refusing to sell so-called morning-after pills and medical students who are penalized for boycotting classes on the abortion procedure: "This is a whole new area of the law that will clearly percolate up to the Supreme Court."

Demonstrate compassion

For most of the 1970s and '80s, pro-lifers focused almost exclusively on courts and statehouses in their efforts to undo Roe vs. Wade. Only slowly did they come to realize that given the current political climate, hearts and minds might be changed more easily than laws.

"No one under 30 has ever known a day without legalized abortion, and I think there's a backlash developing now," says Serrin Foster. Her group, Feminists for Life, educates college-aged women about the consequences of and alternatives to abortion. "When Feminists for Life comes to a college campus, we engage students and make them think about something they've not thought about before. We start a conversation about this, 'Is this the best we can do for women?'

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