Economist March. 15

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Raising the stakes in the battle over abortion

Mar 7th 2006
From The Economist Global Agenda

The state of South Dakota has weighed into America’s noisy debate over abortion by banning the practice in almost all circumstances. The new law will not take effect any time soon. Rather, it is intended to provoke the new-look, more conservative Supreme Court into reviewing the landmark 1973 ruling that guaranteed abortion rights across the country

AFP

SOUTH DAKOTA is best known outside South Dakota as the home of Mount Rushmore, an enormous sculpture of four former presidents’ heads carved into the face of a cliff. This week, the big but thinly populated American state came to national attention for another reason: it banned nearly all abortions. No exceptions will be made for rape or incest. The only legal terminations will be those performed to save a mother’s life.

The new law has already begun to receive national and international attention. But in the outcry it is easy to forget that the abortion ban is not in effect, and won’t be any time soon, if at all. Rather, the aim of South Dakota’s legislature and governor is to provoke a national challenge to Roe v. Wade, the 1973 Supreme Court decision that broadly guarantees abortion rights across the country.

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Foes of abortion feel that momentum is on their side. President George Bush has put two conservative Catholics on the Supreme Court in the past year. The first, John Roberts, replaced the equally anti-Roe chief justice, William Rehnquist. But the second, Samuel Alito, replaced a swing-voter on the bench, Sandra Day O’Connor. Though Ms O’Connor voted to uphold many restrictions on abortion, she defended Roe in the main. Mr Alito, the pro-lifers hope, will be much more firmly on their side.

In the absurdist theatre of the two new judges’ confirmation hearings, neither said he would vote to overturn Roe. It has become convention that judicial appointees pretend they have no personal opinion on any subject, especially emotive ones, but will instead merely apply the law. However, Mr Alito once proclaimed?in a job application to Ronald Reagan’s justice department?his dedication to ending abortion. He has never withdrawn those views. As a circuit-court judge, he upheld a Pennsylvanian law that required women seeking abortions to notify their husbands. When the Supreme Court struck down the law, Ms O’Connor signed an opinion saying that it imposed an “undue burden” on women.

But the anti-abortion crowd has not won yet. Even assuming that both Mr Alito and Mr Roberts are firm opponents of abortion, five justices on the nine-member court still support Roe. If the South Dakota law appeared before the court today, it would surely be struck down. Rather than actually changing abortion practice, the law seems intended more to galvanise the pro-life forces, to test their strength and harden them for other battles. Both pro-life and pro-choice groups raised large sums in what were expected to be protracted and bitter fights over the Senate confirmations of Messrs Roberts and Alito. But both justices were confirmed without much fuss. All the funds and emotions raised for that fight have to be put to some kind of use.

Much rests on the 85-year-old shoulders of John Paul Stevens, the Supreme Court’s liberal stalwart. It could take years for the South Dakota law to work its way through challenges and appeals up the legal ladder. Pro-lifers are hoping that Mr Stevens will leave the court while Mr Bush is still in the White House to replace him. If he does, the president will surely go for another conservative judge, perhaps another Roe opponent. That possibility terrifies liberals. Air America, a left-wing radio network, has begun playing “Hang on, Stevens”, to the tune of an oldie, “Hang On, Sloopy”. Sample lyric: “I don’t care if you lose your mind; just wait until Bush leaves before you resign.”

Whittling away

Two extreme camps wage the abortion battle at full volume, oblivious to any nuance. One side would like to protect legal abortion even in the (rare) cases when a late-term foetus is killed in a grim procedure called “partial-birth abortion”. The South Dakota law, at the other extreme, sees an “unborn human being” at the instant an egg is fertilised in the womb. The two camps trade wearisome accusations of enslaving women and murdering babies.

But broader American opinion is not so polarised. A majority of Americans supports legal abortions early in pregnancy, and large majorities say they would like to see the Supreme Court leave Roe alone. But medical technology has also pushed earlier and earlier the age at which a foetus becomes viable outside the womb, putting abortions even in the second three-month term of pregnancy on shakier moral ground. There is broad support for various restrictions on abortion, especially making teenagers notify (or get consent from) a parent.

So while they will not admit publicly that the issue is anything but black-and-white, the two sides will try to win mini-victories. Abortion opponents won one recently, when the Supreme Court ruled that a law designed to be used against organised crime could not be used to stop foes of abortion protesting in front of clinics. They may win another one when the court revisits partial-birth abortion. An earlier ban on the procedure by the state of Nebraska was struck down in 2000 for including no provision for the life or health of the mother. But a federal version, broadly similar, is making its way to the new-look, more conservative court. The Alito-for-O’Connor swap may mean it passes.

Three peculiarities make America’s debate over abortion different from those in other western democracies. One is America’s religiosity, which means a greater gut-level opposition to the practice. A second is the tendency of courts rather than legislatures to handle the issue. While other countries shape practice in their democratically elected parliaments, America wrangles incessantly over the choice of nine lawyers with lifetime appointments.

But the third American peculiarity may be a saving grace: federalism. America’s conservative states already place some restrictions on abortion, while its more liberal ones allow free access. So long as Roe stays on the books, this will remain the case. An overturning of the ruling would not make abortion illegal across the land?liberal states would continue to allow relatively free access. It would, however, mean that the right to abortion was no longer guaranteed, which in turn could make it almost impossible for a woman to get one in conservative states. Pro-choicers would see this as a travesty. But allowing practice to vary across states keeps the game from being all-or-nothing. And that helps keep America’s obsession with abortion, already unhealthy, from growing worse still.

[a.k.a jay]

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