Whose Life Is It?

By Richard Lacayo

Roe v. Wade. Sometimes those seem like the most contentious words in American law. Short and unassuming though they are, they connote other, more explosive terms: abortion and murder, morality and privacy, the right to life and the right to choose. Attached to those words are some of the most intractable passions in American life. Writing about medical advances that improve the chances for a fetus to survive outside the womb, U.S. Supreme Court Justice Sandra Day O'Connor once declared that the 1973 decision was "on a collision course with itself." Sixteen years after Roe obliged all 50 states to legalize abortion, the nation is on a political collision course.

This week a Supreme Court refashioned by Ronald Reagan will hear arguments in William L. Webster v. Reproductive Health Services, a case that could lead to Roe's being seriously weakened or even reversed. Either outcome would mean a new world, one in which abortions could be banned in many states or made greatly more difficult to get. After years in which court dictates let politicians dodge the whole roiling issue, abortion would be forced back into the political arena. Back to state legislatures and referenda. Back to lawmakers and voters.

Back to the streets too, where it is already being disputed more fiercely than ever. The pro-life advance guard is now represented by the shock troops of Operation Rescue chaining themselves to the doorways of abortion clinics. And when more than 300,000 abortion-rights marchers poured through the streets of Washington a few weeks ago, it was clear that the threat to Roe has jolted the desultory pro-choice movement back to life. "You can't expect it to remain peaceful in these circumstances," says Ruth Pakaluk, president of Massachusetts Citizens for Life. "It's like the Civil War. There is no suitable middle ground."

Yet an uneasy middle ground is precisely the territory that many Americans occupy. Pollsters commonly find that about 40% of the public believe abortion should be available for any reason a woman may choose. A slightly higher percentage typically believe it should be available only in cases of rape, incest or to protect the health of the mother. But a large majority, usually around 70%, regularly say the decision to have an abortion should be left to the woman.

A poll conducted April 4-5 for TIME and CNN by Yankelovich Clancy Shulman produced similar results. While half of those questioned believe abortion is wrong, 67% favor leaving the decision to a woman and her doctor. Fifty-four percent still support the Roe decision, and 62% oppose limiting a woman's right to have an abortion during the first three months of pregnancy. In effect, most Americans would treat abortion as something like divorce -- an anguishing decision but not a crime. Pro-life forces want to convince them that abortion is more like murder -- one of those acts that cannot be sanctioned as a choice. As each side flourishes its arguments and passions, its pictures of fetuses and coat hangers, the conscience too can feel set on a collision course with itself.

Since Roe was handed down, abortions have become if not commonplace, then unexceptional. The number in the U.S. each year has leveled off at around 1.6 million, up from 744,600 in 1973 -- about 30% of all pregnancies, excluding stillbirths and miscarriages. (Comparable figures are 14% for Canada, 13% for West Germany, 27% for Japan and 68% for the Soviet Union.) One-fifth of American women above the age of 15 have had one. According to the Alan Guttmacher Institute, a research organization, most are young and single -- 81% are unmarried at the time, and 62% are under 25. More than one-fourth ( are teenagers. More than two-thirds say they could not afford the child or felt otherwise unready for motherhood.

Until recently, the very degree to which abortion had become accepted had led to inertia among pro-choice forces -- it is not easy to mobilize to defend the status quo. Pro-choice activists have also been criticized for failing to take sufficient account of the mixed feelings that abortion can give rise to. Lately you can hear some of them framing their arguments with greater care. "Nobody likes abortion. It's a difficult choice," says Kate Michelman, executive director of the National Abortion Rights Action League (NARAL). "Women don't have abortions they want. They have abortions they need."

Pro-choice leaders now say the Washington demonstration is just the beginning of a long campaign to guarantee abortion rights. After the march, they hit the offices of Capitol Hill lawmakers to lobby for a federal law that would keep abortion legal even if the court reverses Roe. Activists dumped 200,000 letters at the Justice Department last week, urging Attorney General Dick Thornburgh to drop his request to the court that it overturn Roe. "This has for the past 15 years been a legal struggle," said Ira Glasser, executive director of the American Civil Liberties Union. "It has now become a political struggle."

Capitol Hill lawmakers are receiving cassettes of Abortion: For Survival, a half-hour video produced by the Fund for the Feminist Majority. It is intended to counter The Silent Scream, a 1985 antiabortion film that shows a twelve- week-old fetus being swept from the womb. The new video depicts an actual abortion that lasts 84 seconds and shows two aborted embryos, amounting to about two tablespoons of blood and tissue. The point is to illustrate that what is removed during most abortions -- more than 90% are carried out in the first twelve weeks of pregnancy -- is not the near human figure of pro-life displays.

To mobilize public support for Roe, pro-choice groups like NARAL, Planned Parenthood and the American Civil Liberties Union expect to spend about $2.5 million through June on print and broadcast advertising. And at a meeting in March called by Cosmopolitan editor Helen Gurley Brown, the editors of 16 women's magazines agreed to step up their coverage of the abortion dispute. "I feel we're not holding our ground the way we should," says Brown.

Nowhere has the ground shifted more dramatically than at the Supreme Court, + where the 7-to-2 majority that adopted Roe dwindled with each new Reagan appointment, leaving a deeply divided bench. Just how divided will be apparent when the court hands down its decision on Webster, probably this summer. The case grew out of a 1986 Missouri law that in a nonbinding preamble asserts that life begins at conception. The law forbids abortions by doctors or hospitals that receive state funds. Doctors who get public money would be prohibited even from mentioning abortion to their patients.

Two lower courts have struck down portions of the law. In November the Justice Department surprised many people by jumping into the Webster case to propose that the Supreme Court use the occasion to reverse Roe. While a reversal cannot be ruled out, few court watchers expect it just now. Supreme Court Justices usually prefer to muster a sizable majority behind highly controversial decisions, as they did in Brown v. Board of Education of Topeka, the pivotal -- and unanimous -- 1954 school-desegregation case.

"I think some Justices will put a lot of weight on having a stronger majority," says Columbia University law professor Vincent Blasi. "I also think they'll be confident that in the next few years they will get it." With Roe supporters William Brennan, Thurgood Marshall and Harry Blackmun all in their 80s, George Bush is likely to be able to make some court appointments of his own.

For now Brennan, Marshall and Blackmun are usually joined in abortion rulings by John Paul Stevens, a Gerald Ford appointee. Almost certain to be on the other side are Chief Justice William Rehnquist and Byron White, who were the two dissenters when Roe was decided. Reagan appointees Antonin Scalia and Anthony Kennedy never ruled on an abortion case during their years as lower- court judges, but both men are expected to favor limiting or overturning the decision.

That leaves Sandra Day O'Connor, the first woman to serve on the court, at the pivotal point of a 4-to-4 standoff. Though also a Reagan appointee, O'Connor has indicated that she would not reverse Roe entirely. But she has been strongly willing in the past to give states greater latitude to limit the availability of abortion, and limits are something that pro-choice forces fear almost as much as a reversal. Axing Roe would instantly bring home to millions of American women what they had lost. Whittling it away step by step, case by case could make it harder for pro-choice leaders to rally public support.

As written by Justice Blackmun, the Roe ruling forbids states to restrict a woman's right to abortion in the first twelve weeks of pregnancy. In the second trimester states may restrict abortion only to safeguard the mother's health. Though the court decided that the fetus was not a "person" under the law, it did recognize that states had an interest in protecting "potential life." Because the fetus was considered viable in the final twelve weeks, states were permitted to ban third-trimester abortions, except those necessary to preserve the health of the mother.

Since then, several state legislatures have attempted to test just what restrictions are allowable under Roe. The court has permitted states and the Federal Government to forbid the use of Medicaid funds to pay for abortions that are not necessary to preserve the mother's health. Most other state laws that restrict abortion have been rebuffed by the Justices, but by ever slimmer margins. In 1986, the last time the court took up an abortion case, only a 5- to-4 majority could be mustered to strike down a Pennsylvania "informed consent" law that required women seeking abortion to be presented first with arguments against it. The fifth vote was provided by Lewis Powell, the retired Justice replaced by Kennedy.

If the court upholds the Missouri law, even without reversing Roe, legislatures under pressure from pro-lifers can be expected to pass a flurry of measures making abortion more difficult. One likely tactic would be to drive up the cost, now about $235. At this session the court has been asked to consider an Illinois law that would place expensive building and staffing requirements upon abortion facilities. In an earlier case the court disallowed a law that would require first-trimester abortions to be performed in hospitals; just 13% of all current abortions take place there, mostly on an outpatient basis.

Another possible approach would be to disallow abortions beyond an earlier point in pregnancy, based on the assumption that medical advances permit the fetus to survive outside the womb at an earlier point. A provision of the Missouri law at issue in the Webster case requires doctors to perform tests to determine the viability of the fetus before an abortion can be performed after the 20th week of pregnancy.

However, while there have been significant strides in saving infants born early in the third trimester, when most abortions are already illegal, it is ; still nearly impossible to save those born before the 23rd week. Doctors question whether they will ever push viability back to a point much earlier than that. Until then, fetal lungs are not sufficiently developed. According to a brief filed in the Webster case by the American Medical Association, "the earliest point at which an infant can survive has changed little" since Roe was handed down.

Even if, sooner or later, there is an outright reversal of Roe, it will not make abortion illegal. It will simply leave individual states free to permit, regulate or ban abortion as they see fit. The probable result would be a national patchwork. Legislatures in six states have already said they will ban it. An additional 25 have passed restrictions that will go into effect if Roe is overturned. Among those considered most likely to keep it legal are a handful of other states, including California, Hawaii, New York and Washington, which were among the 16 states that permitted abortion before the Roe decision.

The impact of such varied laws would fall most heavily on younger, poorer women. Women who could afford the transportation and lodging would travel to states where abortion was legal or pay the higher expense of more restricted abortions in their home states. Those without the money would carry unwanted pregnancies to term -- or resort to illegal procedures. That presents what pro-choice leaders say is the most fearsome possibility: the return of murderous illegal abortions. In the years prior to Roe, squalid procedures with bleach, coat hangers or knitting needles left some women dead -- eleven in 1972 -- and rendered others unable to have children.

Yet some on both sides of the debate say that even illegal abortions in the future will be safer. "I reject the idea that there will be a return to back- alley abortions with coat hangers," says Laurie Anne Ramsey, director of education for Americans United for Life. "It's a scare tactic." The chief peril of illegal abortions before Roe was infection and hemorrhaging after the uterus was punctured by a sharp object. Abortions are now usually done by vacuum aspiration, which draws the implanted egg out of the uterus. Several American companies even manufacture plastic kits, costing less than $50, that fit into a shoe box and can perform up to 25 suction abortions. This could become the method of choice for illegal abortion in the future. "You're going to have trained lay people using this," predicts Eleanor Smeal, president of the Fund for the Feminist Majority.

One development could make abortion so much simpler that pro-life activists are desperately fighting it: the French "abortion pill," called RU 486. Introduced in France in September, it is designed to be taken within no more than seven weeks after the first missed menstrual period. It works by adhering to hormone receptors in the uterus that normally accept progesterone, the substance that prepares the uterine lining to receive a fertilized egg. As a result, the uterine lining sloughs off and the embryo is expelled, as during a normal period.

"Abortion becomes as easy as visiting a doctor for a prescription," says David Andrews of Planned Parenthood. Not quite -- the procedure also requires a doctor-administered shot of prostaglandin, a drug that induces contractions. But RU 486 blurs the distinction between abortion and contraception and reduces the need for special clinics, making abortion an even more private affair. The drug is being tested at the University of Southern California; Fundamentalist groups have threatened boycotts against any American firm that applies to the Food and Drug Administration for approval to make or sell it here. But some feminist organizations are discussing how to distribute it, clandestinely if need be, if Roe is reversed.

A ban on abortion would almost certainly result in a further increase in the already high rate of illegitimate births -- now at 23% of American children born each year -- and teenage pregnancies. Taxpayers would end up footing the bill for some of that; half of all welfare payments go to women who gave birth as teenagers. Pro-lifers maintain that the dimensions of the problem would be smaller than many fear, because banning abortion would encourage people to be more cautious about sex. "Once the law tells us that abortion is illegal, there will be far fewer pregnancies to abort," insists Dr. John Willke, president of the National Right to Life Committee.

Above all, abortion activists predict that the struggle could lead to a seismic shift in American politics, becoming a constant factor in nearly every election and threatening to fracture both parties. Like civil rights and the Viet Nam War in the 1960s, abortion could be the great preoccupation of the 1990s. "It will be a battle for years and years and years," says Samuel Lee, executive director of Missouri Citizens for Life, which helped write the law at issue in the Webster case. "I don't think it's ever going to go away."

"There will be a high political price to pay for being anti-choice," promises Gloria Allred, a Los Angeles attorney and women's rights activist. Predictions like that will come true, however, only if abortion is made into the kind of litmus test that it has already become for many pro-lifers. Can pro-choice supporters be made single-issue voters, who will elect a candidate who shares their views on abortion even if they disagree with him on defense, taxes or the environment?

The Republican Party had a strong antiabortion plank in its 1988 platform, and George Bush has become a steadfast pro-lifer, though he got there by a meandering path. He was once quoted as opposing a constitutional amendment to declare that life begins at conception, and he once supported public funding for some abortions. On his first working day in the White House, however, the President addressed a group of pro-life marchers in Washington by telephone hookup, calling abortion "an American tragedy." Yet Republicans also know that their party's identification with the antiabortion cause could cost them votes. The Justice Department waited until two days after the presidential election to announce that it was entering the Webster case to seek a reversal of Roe.

If abortion becomes a sufficiently compelling issue, would unhappy pro- choicers defect from the G.O.P. in sufficient numbers to tilt national elections? Stuart Rothenberg, director of the political division of the Free Congress Research and Education Foundation, says that if Democrats can shift the image of their party toward the center on economic and defense matters and then add the abortion issue, "they have the possibility of fracturing the Republican coalition." Says Democratic National Committee spokesman Mike McCurry: "We're thinking ahead. Are we in a position where we can plan ahead? I don't think so, yet."

The fracture lines in Congress are already forming along party lines. Twenty-five Senators and 115 Congressmen put their names to a brief in the Webster case supporting Roe. All but 17 were Democrats. But Republican strategists do not expect abortion to threaten the G.O.P. advantage in presidential years. "I don't think you'll see the Republican Party or the White House getting involved in all these state fights over it," says G.O.P. consultant Charles Black. "In a national election I would expect abortion to be one of the second-tier issues, not a top-tier burning one."

On the lower tiers, where the daily life of the nation is conducted, abortion is sure to remain a burning issue. So long as Roe survives, the pro- life movement will keep up pressure for its reversal. And if the court dismantles Roe, the U.S. is likely to see a situation not unlike the one it lived through during Prohibition, when the law was flouted -- sometimes openly, sometimes covertly but very widely. A new era of uncertainty will open for American women, whose opportunities in life have been transformed in part by the freedom that Roe afforded. But two things are certain to remain unchanged. There will still be fighting about abortion. And there will still be abortion.

CHART: NOT AVAILABLE

CREDIT: TIME Chart.

CAPTION: LAWS

Do you favor or oppose passing laws making it more difficult for women to have abortions?

BELIEFS

Do you personally believe having an abortion is wrong?

With reporting by Steven Holmes/Washington, Naushad S. Mehta/New York and Elizabeth Taylor/Chicago, with other bureaus