Going Against the Grain

When Ronald Reagan nominated Sandra Day O'Connor to be the first woman on the U.S. Supreme Court, the protests from his New Right constituency were blistering. The furor focused on several votes O'Connor had cast as an Arizona state senator that were interpreted as being proabortion. Therefore, it came as something of a surprise last week when, in the first test of her views on the issue since she joined the brethren 21 months ago, O'Connor wrote a blunt dissent to the court's opinion that reaffirmed the right to abortion.

While the antiabortion forces were distressed by the court's decision, they were delighted with O'Connor. "A young Justice so vigorously dissenting, and a woman at that, is a harbinger that this is not a dead issue," said Dr. John Willke, president of the National Right to Life Committee. Feminists, who had welcomed O'Connor's appointment, were disappointed. "Having a woman on the court gave us the possibility of a representative female perspective," said NOW President Judy Goldsmith. "It did not guarantee it."

In fact, O'Connor's dissent may reflect a sturdy commitment to states' rights, rather than any personal feelings about abortion. She cited earlier court decisions: " 'Scrupulous regard for the rightful independence of state governments' counsels against 'unnecessary interference by the federal courts.' " Professor Louis Michael Seidman of Washington's Georgetown University Law Center disagrees with Justice Lewis Powell that O'Connor's dissent is a veiled bid to overturn Roe vs. Wade. "I don't think it undermines Roe" Seidman says. "But we don't know what she'd do if the basic right to abortion were under challenge. She has left herself flexible to move in either direction."

Although many observers assumed that O'Connor would advocate abortion rights, partly because she was the first female Justice and partly because of her Arizona votes, there was always an ambiguity in her feelings. She explained her votes in the state senate as being determined by strict adherence to legislative procedure rather than by pro-abortion sympathies. For instance, in 1974 she opposed a University of Arizona stadium bond issue after a rider was attached banning state funding for abortions at the university hospital. Her objection was not to the ban, she later explained, but to the use of an irrelevant rider, which she considered unconstitutional. Before her nomination, she told Reagan she found abortion "personally repugnant" and considered it a "subject for state regulation."

O'Connor's dissent was closely reasoned and forcefully written. To some legal experts, that was more important than her conclusions. In a touchy and highly visible case, O'Connor showed she was not a token woman but a Justice of conviction. This file is automatically generated by a robot program, so viewer discretion is required.