With President Bush eager to nominate anti-abortion Supreme Court justices, supporters of Roe vs. Wade brace for the 1973 ruling’s most serious challenge ever

Thirty years ago, the abortion question in the United States seemed so clear-cut.

Like it or not, legalized abortion was here to stay—so even the most ardent abortion opponents thought at the time. With the 1973 Roe vs. Wade Supreme Court decision affirming a woman’s right to abortion, the legal debate was settled, even if the moral debate remained unresolved.

But a generation later—a generation in which millions of American women have come of age expecting abortion to be available and knowing no other scenario—many who follow the abortion issue in the United States say that the Roe decision is facing its most critical challenge ever.

It is a question of timing more than anything else, an alignment of the planets that has never before happened in this exact way in the landmark decision’s history, and that could mean its demise. That possibility comes not so much from any one decision pending before the Supreme Court as from the weight of 30 years of controversy bearing down on the court at a critical period.

Given that President George W. Bush is both relatively popular and unremittingly opposed to abortion, and given that the Supreme Court could undergo any one of several possible political shifts in its membership any day now, abortion supporters are bracing themselves and abortion opponents are keeping their fingers crossed.

“It’s been a long time coming. I think Roe vs. Wade’s time has come,” says Lori Hougens, acting executive director of the New York State Right to Life Committee. “I think this could very well be it.”

Others agree with that assessment.

“I’m terrified, because this is really an item that is high on our president’s agenda,” says gynecologist Fred Storm, medical director at Upper Hudson Planned Parenthood for the past 16 years, and one of the few doctors in the Capital Region who performs abortions in a clinic.The Supreme Court is an appointment for life, but in reality very few modern-day justices plan to stick with the bench till death do them part. And that’s why John Paul Stevens, a strong supporter of abortion rights and at age 82 one of the oldest justices ever to sit on the court, is something of a curiosity, says Stephen Clark, an assistant professor at Albany Law School.

“Stevens could have left during either of Clinton’s two terms if he wanted to be replaced by a liberal,” says Clark, who teaches the Roe decision in his constitutional law class. “He seems like a guy who likes his job.”

Dedicated to the cause: a protester in front of Planned Parenthood. Phoot by Joe Putrock.

The fact that Stevens stayed on means that infirmity or death could remove him from the court during the Bush administration. Court watchers think it’s possible that two other justices viewed as Roe supporters—Sandra Day O’Connor and Ruth Ginsburg—may not last through another six years of a Bush administration, either. And if one or more Roe supporters is replaced by a justice more likely to side with those who oppose abortion, it may only be a matter of time before the court decides to hear a case that could overturn the 1973 ruling.

Stevens and O’Connor, along with Justice Anthony Kennedy, crafted the compromise in the 1992 Pennsylvania case, Planned Parenthood vs. Casey, that abortion opponents had hoped would overturn Roe altogether.

The Casey decision stemmed from Pennsylvania’s requirement that a woman seeking an abortion comply with certain conditions that critics said were intended to delay the abortion and ultimately dissuade her from going through with it. For example, a married woman had to sign a statement that her husband had consented to the abortion.

In deciding to uphold Roe with a somewhat-qualified endorsement, Stevens, O’Connor and Kennedy established the standard of the “undue burden”: States could impose restrictions on abortions as long as those restrictions did not place an undue burden on a woman’s access to abortion. The era of 48-hour waiting periods, mandatory pre-abortion counseling and familial consent forms was born.

“Roe is not even deemed to be precedent anymore, because Casey so altered the standard to allow abortion,” Clark says.

O’Connor, 72 and a cancer survivor, has long been thought to be yearning for retirement. Ginsburg, 69, is under treatment for colon cancer.

“There are all sorts of rumors: She’s doing well, she’s doing poorly,” says Clark. “There’s some fear she may be leaving in the next six years, and she’s one of the progressives. If any of those three leave, you’d have five votes to overturn [legalized abortion as established in Casey], and I’m not optimistic.

“If you assume a second Bush term, then that’s six more years of Bush selecting replacements for whoever leaves. Stevens cannot possibly last six more years.”

T hese are hopeful times for opponents of abortion. “I think we have people who have a strong belief in the sanctity of life at the federal level,” says Meg Bergh, director of the Family Life Office for the Roman Catholic Diocese of Albany. “It’s just as important today as it was 30 years ago to push for the sanctity. The composition of the Congress is really positive for life.”

The advocate: Lori Hougens, New York State Right to Life Committee. Photo by Joe Putrock.

JoAnn Smith, president and chief executive officer of Family Planning Advocates of New York State—a coalition of women’s health and reproductive services agencies—agrees that the United States government in the Bush years is focusing extensively on issues of family planning and abortion rights. Only she doesn’t cast that focus in quite the same light as Bergh.

“There’s just step-by-step-by-step wearing away at women’s right to choose,” Smith says. “One of the very first actions of the Bush administration was to put back in place the global gag rule. The women of the world were hurt terribly by that. The Bush appointments to every level of the judiciary have to pass a test—and have it in writing—of being virulently anti-choice.”

Under what supporters call a victory for international abortion opponents and critics call the “global gag rule,” the United States prohibits foreign organizations that receive U.S. health funds from providing abortion services, counseling or advocacy. The policy began under the Reagan administration in 1984 and continued until President Clinton overturned it as one of his first acts in office in 1993. President Bush reinstated it two years ago, as one of his first acts in office.

“It is a time of great optimism for us,” says Hougens, who says there is still “a lot of work to do.

“Having someone who is pro-life in the White House is a great thing,” she says. “It’s very thrilling. I think that President Bush is compassionate, he’s decent, he truly cares about people, but he certainly doesn’t think you do that by stepping over the bodies of babies.”

But no matter how committed Bush is to outlawing abortion, any decision at the federal level that would overturn the national right to abortion and throw it back to the states to decide individually would not come easily.

“That’s one of the reasons that O’Connor, [David] Souter and Kennedy chose not to override Roe in Casey,” says Clark. “One of the things they cited is, we have this generation of women who grew up having this right, expecting this right to exist, and we’re not prepared to change that. It could be pressure to a Bush appointee.”

Not to mention that a Bush appointee can’t be counted on to follow any marching orders from the White House. Consider the case of Justice Souter, appointed to the Supreme Court in 1990 by the then-anti-abortion first President George Bush. Souter became the Earl Warren of his day, deciding again and again for abortion rights and refusing to join the anti-Roe faction of the court.

And there are all those other issues hanging around—the economy, the war on terrorism, a possible war in Iraq. Given a chance before the 2004 election to appoint a justice to the Supreme Court who is absolutely, positively committed to overturning the federal right to abortion, the Bush administration might think twice, Clark notes.

With a slender Republican majority in the Senate and the certainty that throwing abortion back to the states would make the next presidential election a single-issue campaign, “I’m not sure why Karl Rove would want it overturned,” Clark says, in a reference to the influential strategist and advisor of Bush’s inner circle.

“I’m not absolutely convinced that it would be overturned, because if it was, it would skew the balance of power against the Republican Party,” says the Rev. Tom Davis, who for many years was chaplain at Skidmore College.

In the 1960s, Davis was active in a group called the Clergy Consultation Services on Abortion, a national organization that identified and screened doctors who would perform abortions before they were legal anywhere in the country. The group disbanded once the Roe case was decided.

“If they overturned the decision, it would throw it to the states,” Davis says. “I would be stunned. But no one can say for sure what the court will do.”

The trial of James Kopp is expected to begin in Buffalo next month, putting New York in the national and even international spotlight of the abortion debate once again. Kopp, who was extradited from France last spring following an international manhunt, has confessed to gunning down Dr. Barnett Slepian, an OB/GYN in Buffalo who had continued to perform abortions at a clinic there despite numerous threats and the fact that Buffalo had been the scene of some of the most vehement anti-abortion protests in the country. (Kopp, in a jailhouse interview with the Buffalo News last year, has said he intended to wound Slepian, not kill him.)

The Kopp trial will be the latest chapter in the abortion debate in New York, which has been a flash point for the controversy ever since New York became the first state to legalize abortion, in 1970. New York’s abortion law remains intact, although abortion supporters say that access has lessened over the years.

“There are many counties in New York state that are not providing abortions at all,” says JoAnn Smith. “I do know there are women in northern New York state who are traveling four or five hours to get a medical procedure that is safe and legal. There are fewer abortion providers in the United States and in New York state.”

Still, there has not been a serious legislative challenge to New York’s abortion law since the late 1970s, and Smith does not foresee a time when New York will impose a waiting period on a woman seeking an abortion.

Mifepristone, (also known as RU 486), a pill that induces abortion and can be used in some cases as an alternative to surgical abortion, is gaining wider acceptance in New York, Smith says. However, because it is still administered mostly in settings that also provide surgical abortions, it’s still difficult for most women to avoid protests at clinics—whether they are seeking access for an abortion or for another service.

Medicaid funding for abortions in New York undergoes a challenge in the New York State Senate just about every year, Smith says. But overall, she sees New York’s abortion law remaining intact, no matter what happens at the national level.

“New York has, from the beginning, a proud history that abortion will be available, that there will not be restrictions on it,” she says. “I have a hard time imagining that Roe actually could be overturned, because I think as the danger of that becomes very apparent, people are getting more concerned. The thing I think is more likely to happen is a thousand incremental steps that could restrict choice.”

Lori Hougens believes abortion will eventually be illegal throughout the United States, but not in her lifetime.

“All human-rights atrocities end, but they take sometimes hundreds of years,” she says. “I hope to God I’m wrong. I’d like it to end tomorrow.”

Comfort zone: escorts for Planned Parenthood clients. Photo by Joe Putrock. When Opposites Interact For Christmas, Ron Golden gave Elizabeth Pearson a necklace. What was special about the gift wasn’t the necklace itself—Pearson doesn’t wear necklaces, and probably will give it to a granddaughter—but the fact that every Friday morning, Golden and Pearson play adversarial roles in front of Upper Hudson Planned Parenthood on Lark Street in Albany. Golden, a staunch opponent of abortion, does a prayer vigil and protest every week on the sidewalk in front of the clinic; Pearson, a staunch supporter of women’s right to choose, works Fridays as a volunteer escort for patients coming into the building. On Fridays and especially Saturdays since 1986, the “pro-life” demonstrators have been a highly visible (and audible) presence in front of Planned Parenthood, marching, carrying signs with messages like “THEY’RE KILLING BABIES HERE” and “A BABY IS A PERSON NO MATTER HOW SMALL,” and singing (with no apologies to John Lennon) “All we are saying is/Give life a chance.” The orange-vested escorts stand near the doorway, poised to accompany patients who otherwise might be intimidated by the demonstrators. The escorts wish the protesters weren’t there; the protesters wish Planned Parenthood weren’t giving them a reason to be there. But while the two groups are polar opposites on an issue that has spawned much anger, hostility and even violence, they are also human beings who share the same sidewalk week after week—and over the years, their feelings toward each other have warmed. Several weeks ago, when the protesters were attacked by a man who tried to smash their video camera, the escorts invited them inside the building to warm up and get away from the attacker, says Dennis Wolterding, a member of Citizens Concerned for Human Life Inc. and a regular at the weekly pickets since 1986. “Some very lovely things have happened over the years between the escorts and us,” he says. Golden and Pearson have known each other for some years now and are quite comfortable in each other’s presence (prior to this year’s Christmas gift, Golden also had given Pearson a statue of the Lady of Guadalupe, which is currently in her backyard). And with the recent attack in mind, Golden is comforted to know that Pearson is a Quaker. “I feel secure when she’s here,” he says, “because I’m here alone, and vulnerable. I know she’s opposed to any kind of violence; if anyone attacked me, she’d call the cops. And I’d do the same for her.” Wolterding also is a Quaker, and has known Pearson since the days when they attended Albany Friends Meeting together. Alluding to the fact that some liberal passersby might assume that the protesters are raving right-wingers, Wolterding ticks off some of his own liberal positions: He’s against the death penalty, and against “almost every kind of war.” “I’m close to being a pacifist,” he says. And while his take on abortion is as blunt as ever—“genocide against unborn Americans, whose only crime is that they’re not wanted by their mothers”—he is tolerant, perhaps more so than he once was, of abortion-rights supporters and their right to have a different opinion. “There are a hell of a lot of good people who consider themselves pro-choice,” he says. “I have dear friends who are ardently different from me on this issue.” Wolterding recalls a woman who used to be an escort at Planned Parenthood, and a chance conversation one morning that helped melt the ice between them. “I had been picketing for several years,” he recalls, “and I had gotten the impression, because she was very quiet and rarely made eye contact, that she was very hostile. Then one day, I just happened to be talking to one of the other pro-life picketers about my daughter, about how she tended to lose concentration from time to time, being a pre-teenager. “And this escort just happened to pipe up and say, “Don’t worry about Jane, she’s brilliant.” And it turned out that this escort was my daughter’s teacher, and liked Jane very much. I was taken aback. In that moment, our relationship could never be the same as it was, because we agreed on something very important to me.” Patricia Rose, who has been an escort at Planned Parenthood for seven years, and who saw the results of “botched-up jobs [by] the neighborhood back-alley abortionists” as an emergency-room technologist in the pre-Roe vs. Wade days, is more guarded when asked about cordiality between escorts and picketers. “The anti-choice people have a right to be there and express an opinion,” she says. “There’s two sides to the issue, and I respect their beliefs, even though I don’t agree with them.” But, she adds, “I wish that they would not be there in front of Planned Parenthood, because I feel that they might be frightening teenagers and preventing them from going in to get birth-control information before they even make the decision to have sex or not. And I firmly believe that birth control should be available to prevent the need for abortion. . . . Those of us on the pro-choice side, we hate abortion also. We wish that there didn’t have to be abortion.” And Rose points out that the board of Planned Parenthood frowns upon socializing between escorts and protesters for one very practical reason: Patients who might be intimidated by the demonstrators are more likely to feel secure if there is a clear line separating those who are on their side and those who are not. “We really try not to interact,” she says, “because I really don’t want to confuse the people that are going into Planned Parenthood.” Ironically, it was the board’s disapproval of such interaction that led to Elizabeth Pearson’s volunteer day being changed to Friday from Saturday, when she often talked to her friend Dennis Wolterding. Pearson claims she would talk to him to keep him from singing, because, she says, “his singing is terrible.” But “the board called me in and said, we don’t want you talking to him.” And they moved her to Fridays. “What I tried to explain to the people on the board was, it’s an issue—it’s not the person,” Pearson says. “It’s an issue, and I am very much in favor of choice. [But] there are certain people on our side of the street who turn their backs on [the picketers], won’t look at them, frown at them. That’s ridiculous. They’re still human beings.” —Stephen Leon