CHRISTIANITY TODAY/August 18, 1989
A Supreme Court decision marks the beginning of a new era in the abortion debate, an era long awaited by abortion foes.
Within days following last month’s long-awaited Supreme Court abortion decision, prolife activists around the country began plans to implement a new stage in antiabortion strategy. Likewise, in prochoice quarters, advocates of abortion were pulling out contingency plans they once thought would never be needed.
As the dust from reaction to the Webster decision settles, both sides are digging in for the battle ahead. Agreeing on little else, they acknowledge that the Court, in paving the way for more state regulation of abortion, has thrown the emotion-laden debate into a different arena, one wherein the issue will be addressed in a far wider variety of social and political contexts.
Roe’S Questionable Future
The Court’s five-to-four decision in Webster v. Reproductive Health Services upheld several Missouri restrictions on abortion. It prohibits the use of public buildings for medically unnecessary abortions; prohibits public employees, including doctors and nurses, from performing or assisting in abortions; prohibits public funds that encourage abortion; and requires medical tests to determine the viability of a fetus at least 20 weeks old. In addition, the Court allowed a preamble to the law proclaiming that life begins at conception.
Though the immediate impact of the ruling is limited (see “What Webster Did for Missouri,” next page), prolife forces declared it a major victory. “For 16 years, we’ve fought the effects of Roe v. Wade, and time and time again the Court has turned us down,” said Tom Glessner, executive director of the Christian Action Council (CAC). “Now, we finally have a ruling that goes our way, that upholds an attempt to restrict abortion.”
That victory did not include the reversal of Roe v. Wade prolifers had hoped for, but most observers say Roe has been wounded, perhaps mortally. In a nonbinding footnote, Chief Justice William Rehnquist sharply criticized the trimester framework of Roe. That framework barred virtually all restrictions on abortion in the first trimester of pregnancy and allowed restrictions only in the interest of maternal health in the second. Only in the third trimester, Roe held, could states restrict abortion in the interest of the fetus.
The future of Roe could be further determined during the Court’s next term, which begins in October. Justices have agreed to hear three abortion-related cases:
• Hodgson v. Minnesota—a challenge to a state law requiring minors to notify both parents before an abortion.
• Ohio v. Akron Center for Reproductive Health—a challenge to a law requiring teenage girls to notify at least one parent before an abortion. This law, like the Minnesota statute, mandates a waiting period after notification.
• Turnock v. Ragsdale—a challenge to an Illinois law that places health regulations on outpatient clinics, including private abortion clinics. The law was drafted in response to revelations of unsafe practices in Chicago abortion clinics. Prochoice groups say the regulations are unnecessarily stringent, raise the cost of abortions, and place an undue burden on the clinics.
Any of these cases could chip away at the Roe decision. But Paige Cunningham, senior attorney for Americans United for Life (AUL), doubts any “will directly challenge Roe.”
No Time To Wait
However, neither advocates nor opponents of abortion are awaiting the Supreme Court’s next move. With Webster’s signal that states may now impose restrictions on abortion, prolife legislators and activists in every state are developing strategies to limit abortion. The obvious one, of course, is to enact statutes identical to the Supreme Court-approved Missouri law.
But many prolifers are eager to test how far the high court will allow states to go in regulating, or even prohibiting, abortion. New restrictive legislation could include: requiring doctors to give women detailed information about fetal development and possible complications from abortion; granting some veto power to the father of the unborn child; and prohibiting abortion for such reasons as the sex of the child, inconvenience, or financial difficulties.
One prolife option is already being tested in Louisiana, where a U.S. District Court is considering whether the state’s century-old antiabortion law may again be enforced in light of the Webster decision. The law, which makes performing abortions a criminal act, has remained dormant on Louisiana’s books since Roe.
Much of the legislative activity will be delayed until next year when most of the state legislatures reconvene. However, as many as 13 states could hold legislative sessions yet this year, and abortion battles are expected in most, if not all, of them.
Meanwhile, supporters of legalized abortion have vowed to fight all attempts to restrict it further. “We are going to do everything we can to win back the total right—for women who are poor or wealthy—the right to control their lives,” said National Organization for Women president Molly Yard. Not only will prochoice groups fight passage of restrictive laws at the state level, said National Abortion Rights Action League (NARAL) executive director Kate Michelman, but challenge prolife victories in the courts.
Another arena for battle will be the ballot box. Both sides will make abortion the litmus-test issue (see “Life After Webster,” p. 14). Darla St. Martin, associate executive director of the National Right to Life Committee (NRLC), believes her side has the electoral edge. “The proabortionists would certainly like to have [candidates] believe it’s not to their advantage to be prolife,” she said, “but it’s been shown repeatedly in election after election there are more prolife people who are willing to vote on the basis of the issue.”
Rallying The Troops
Prochoice activists are trying to energize their constituents to capture lost territory. Planned Parenthood and NARAL have launched major ad campaigns attacking prochoice complacency. And another prochoice march on Washington is planned for October.
The prochoice movement has also stepped up efforts to have the French RU 486 “abortion pill” imported and manufactured in the U.S. And prochoice leaders announced at a recent press conference that the Federation of Feminist Women’s Health Centers has produced a video instructing women to perform their own abortions safely. No specifics were given.
Meanwhile, prolifers are attempting to take advantage of their current momentum. The NRLC is planning a major strategy meeting in Washington in October, and the CAC has set its annual Pastors Protest Against Abortion conference for September 30, the Saturday before the Supreme Court reconvenes.
What Webster Did for Missouri
In a national newspaper ad that appeared soon after the Webster decision, the National Abortion Rights Action League proclaimed, “On July 3, Americans lost a fundamental liberty.” Indeed, rhetoric from both sides in the abortion debate might be misleading many to think the high court has drastically changed national abortion policy. In reality, the ruling applied only to Missouri and, even there, is somewhat limited in scope. CHRISTIANITY TODAY asked Missouri Attorney General William L. Webster, for whom the Webster case is named, to explain what the Court’s decision accomplished.
What is the practical impact of the decision in Missouri?
I think it has been mischaracterized in the press. The short-term impact, in terms of the number of abortions, will be relatively minor. We didn’t have many abortions performed in public facilities anyway. There are very few post-twenty-week abortions, so our testing plank will not affect a substantial number. And we have no state-funded abortion advocacy programs. So, as you walk through the regulations of the Missouri law that were upheld, it’s not going to have a dramatic impact.
Then has anything changed?
There were two publicly funded hospitals in Missouri that performed abortions: the University of Missouri Medical Center in Columbia and the Truman Medical Center in Kansas City. But I’d say the total number of abortions performed in those two hospitals was under 100 [annually]. We have indications from both that they will comply with the requirements upheld by the Supreme Court.
As far as the twenty-week testing is concerned, we are making the state board of healing arts and the state department of health aware of the requirements of this statute to ensure that the medical profession complies.
Will you be able to enforce that requirement?
We certainly intend to, although the doctors are licensed under the state board of healing arts. If doctors violate the requirement, we would assume their licenses would be subject to revocation.
What will be the practical impact of the law’s preamble, which states that life begins at conception?
We don’t believe it will have any short-term impact on abortion, but I think you have to go to the longer-term significance of the ruling. Essentially, Roe v. Wade said that in the first trimester, almost no state regulation limiting abortion could withstand scrutiny, and in the second trimester, the issue would be viability.
Now the Court has sent a strong signal that the trimester framework is flawed, that states have a substantial interest in regulating abortion, and that it would entertain additional state regulations. The Court seemed to invite it in the text of its opinion. The long-term result is that substantial responsibility to regulate abortion is returned to the states.
Do you foresee additional regulations in your state?
It’s very likely. The governor has announced that a task force will be appointed to consider additional regulation in light of the ruling. My guess is that our next legislative session, which begins in January, will have a number of suggested regulations before it, and that at least some will pass. Missouri has a reputation as a prolife state. Four of the 17 abortion cases that have gone to the Supreme Court came out of Missouri. I think it is safe to say that Missouri historically has been a very active player in this debate.
Operation Rescue (OR) has also planned a strategy meeting in Washington for November, not just to train people to conduct “rescues,” but to instruct them on political activism at state and local levels. Until now, the group has not been active politically, but leader Randall Terry said such work is important. “Our position all along,” he said, “has been that the legislative work is critical, but without rescue, is impotent.”
Other Supreme Court Matters
As the Court recessed, national attention was focused on controversial decisions surrounding abortion, civil rights, and flag burning. Less attention was paid to these other religion-related decisions:
• County of Allegheny v. ACLU—In a split, two-part decision, the justices ruled that a Christmas crèche in front of the Allegheny County courthouse was unconstitutional, while a Jewish Menorah by a Christmas tree in front of a nearby government building was constitutional. In a five-to-four vote, the justices ruled that the nativity scene, which was accompanied by a banner proclaiming “Glory to God in the Highest,” constituted government endorsement of a particular religion. However, in a six-to-three ruling, the justices found the Menorah to be acceptable because it was surrounded by other, secular symbols.
• Sable Communications of California, Inc. v. Federal Communications Commission—In another split decision, the Court said the federal government may not ban “indecent” dial-a-porn telephone messages, while it may prohibit “obscene” messages. The Court agreed unanimously that a 1988 congressional act banning indecent dial-a-porn messages violated First Amendment freedom of speech. However, in a six-to-three vote, the justices upheld the portion of the act that banned obscene messages, saying that obscenity is not protected by the First Amendment. The Court offered no new guidelines for differentiating between obscenity and indecency.
A Post-Reo Era Considered
Many in the prolife movement believe the nation could be on the brink of a “post-Roe era,” though they acknowledge that much work remains. It is a movement that has been slowed by differences in style and strategy, including on such questions as moral compromise for legislative gains.
“The challenge of the national and state leaders is to somehow put our differences aside and come together realizing that we are for the same end result,” said the CAC’s Glessner.
Richard John Neuhaus, director of the Institute on Religion and Public Life, said that diversity should not be viewed as division. He said many prolife leaders have recently begun meeting privately in an effort to come to grips with their differences. Neuhaus believes the meetings have led to “a measure of commonality among prolife leaders that had not been there before.”
Many prolife activists are urging their constituents to think creatively beyond Roe. “In the post-Roe environment, we as Christians need to think in terms of our responsibility, particularly to teenagers, in dealing with the stresses that get them involved in an unwanted pregnancy in the first place,” said ALU’s Cunningham.
Cunningham said her organization is looking at legislation to offer alternatives to abortion, enable women to receive better child support, and encourage responsible fatherhood. Similarly, the CAC is planning to increase the number of its crisis pregnancy centers across the country from 400 to 600 by 1991.
Sen. Mark Hatfield (R-Oreg.) believes such efforts are the only way abortion will truly come to an end in America. “As long as America is comfortable with its scrap heap of dead and dying ‘unwanteds,’ abortion will seem humane,” he wrote in the Washington Post. “Those of us dedicated to the prolife cause should endeavor to give pregnant mothers a choice that is not one among evils, but rather one among goods.”
By Kim A. Lawton.
