A Day of Reckoning on Roe

By Richard Lacayo

Both inside and outside the U.S. Supreme Court last week, the endless argument over abortion came to a critical confrontation. Outside there was a | raucous standoff on the courthouse steps and plaza, where some 200 demonstrators, pro and con, sang, chanted and shouted. Inside, where the noise could not penetrate, the nine Justices were assembled to hear arguments in William L. Webster v. Reproductive Health Services, a case that could leave in tatters the pivotal Roe v. Wade decision that legalized abortion in 1973. In both places many of the issues were the same. But inside, though the language was less heated, it had more weight.

During the one-hour courtroom session, attention was fastened upon the questions posed by the pivotal Reagan-appointed Justices: Anthony Kennedy, Antonin Scalia and Sandra Day O'Connor. Their inquiries to lawyers on both sides ranged far from the Missouri law restricting abortion to the larger question of where to draw the borders of privacy rights. Do these rights encompass abortion? If not, is contraception excluded too? As for the four Justices who regularly support Roe, only John Paul Stevens took an active part in the proceedings. Harry Blackmun, who wrote the landmark opinion, sat silently throughout.

Missouri Attorney General William Webster, the first to speak, attempted to minimize the impact of his state's antiabortion law, which declares that life begins at conception and bars the use of public funds and public facilities such as hospitals to perform or assist in an abortion. The statute, which has never gone into effect, would also forbid doctors in publicly funded hospitals to "encourage or counsel" a woman to obtain an abortion. Webster argued that several of the law's provisions would have little impact, implying that the court could uphold them without jeopardizing Roe.

It was former Solicitor General Charles Fried, called back by the Bush Administration to argue this case, who made the broad attack, presenting the White House argument that Roe should be overturned. In the most interesting exchanges of the morning, O'Connor and Kennedy appeared to press Fried to explain how the court could reverse Roe without also undoing a crucial 1965 decision, Griswold v. Connecticut. In that ruling the court found that the right of privacy protects the decision to use contraceptives. Abortion is different, Fried replied, because it involves the purposeful termination of potential life. "We are not asking the court to unravel the fabric of . . . privacy rights which this court has woven," he said at the beginning of his presentation. "Rather, we are asking the court to pull this one thread." .

That line provoked the sharpest rejoinder of the day, from attorney Frank Susman, who argued on behalf of the Missouri abortion clinic that is challenging the antiabortion law: "It has always been my personal experience that when I pull a thread, my sleeve falls off . . . It is not a thread he is after. It is the full range of procreational rights and choices."

Susman put to his own purposes a tactic of the antiabortion forces, who argue that scientific advances will invalidate Roe by making the fetus viable earlier in pregnancy. Susman pressed the notion that scientific progress had made the right to abortion impossible to disentangle from the right to practice contraception. He maintained that certain forms of birth control such as intrauterine devices act after the sperm and the egg have joined, a description that some medical experts dispute. But if accurate, then such devices in effect abort what the Missouri statute would define as a living being.

But when Susman argued that there is a fundamental right to abortion, Scalia appeared to see the border of one right impinging upon another. "It is very hard to say . . . that it must be a fundamental right," he replied, "unless you make the determination that the organism that is destroyed is not a human life."

Now the Justices must decide how widely to rule: to strike down the Missouri law or to support it as compatible with Roe; they could also restrict or, less likely, overturn Roe. Many observers expect a fragmented court until further appointments produce a firm majority on one side or the other. As with some affirmative-action cases, even Justices who agree in an abortion ruling might disagree about the legal basis for their conclusions. Although the Justices were expected to vote on the case in a closed-door session last week, their decision is not likely to be announced until late next month. Then the arguing inside will be finished for a while, still leaving much room for argument outside.

With reporting by Steven Holmes/Washington