Would Roe Go?

By Richard Stengel.

Since the Supreme Court's 1973 Roe v. Wade decision striking down laws prohibiting abortion, almost 20 million pregnancies have been terminated in the U.S. Robert Bork believes that ruling is without foundation. His opinion chills women's groups and cheers right-to-life supporters, who expect Bork to become part of a new court majority that will overturn Roe. That outcome, however, is far from certain.

Bork's position on the law is unequivocal. "Roe v. Wade," he asserted to Congress in 1981, "is itself an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority." He does not believe the Constitution guarantees the right to privacy, the guiding principle underlying Roe.

Still, Bork has never said outright that he would strike down Roe, and of late he has even paid lip service to the judicial principle that it is better to leave certain long-settled decisions in effect if reversing them would create chaos. Bork has never declared that abortion is morally wrong, and in 1981 he testified in Congress against the "human life" bill that would have defined life as beginning at conception. Says John Willke, president of the National Right to Life Committee: "We're not sure Bork is against abortion. In our circles, there is substantial doubt that he is."

Nor would Justice Bork necessarily become the bellwether of an anti-Roe majority. The court still includes four staunch supporters of Roe: Harry Blackmun, the author of the decision, plus Thurgood Marshall, William Brennan and John Paul Stevens. Chief Justice William Rehnquist and Byron White both dissented from Roe and would probably vote against it again. Antonin Scalia is thought to be against abortion. Bork would make four firmly against. But Sandra Day O'Connor is a question mark, and may become the swing vote in any majority. While O'Connor believes the court has gone too far in preventing states from regulating abortion, she may be reluctant to toss out Roe completely.

Moreover, in the near future the court is not likely to hear any cases that deal with outright prohibitions against abortion. "What they're going to have," says UCLA Law Professor Julian Eule, "is cases that deal with a variety of obstacles to abortion that the states have constructed. Therefore, what the court would do, rather than say, 'We abandon Roe v. Wade,' is to allow increasing leeway to states to regulate the parameters of the right to an abortion." More regulation would undoubtedly mean fewer abortions.

One probable step would be the court's approval of statutes that require minors to get parental permission for an abortion. On Nov. 3 the Justices will hear oral arguments in Hartigan v. Zbaraz, an appeal of a decision striking down an Illinois statute restricting minors' access to abortion.

But even if the court were to overturn Roe, abortions would not suddenly become illegal. The issue would revert to the states, and most legislatures would have to pass new laws if they wanted to ban abortions. When the Roe decision was handed down 14 years ago, abortion was widely available in 17 states. Currently, 14 states, including New York and North Carolina, pay the full cost of abortions for poor women; most of these states would be unlikely to abolish abortion. But other states will surely go in the opposite direction. Illinois and Pennsylvania, which have repeatedly passed laws challenging the court's rulings, would probably propose measures outlawing abortion. Pro-choice activists predict that Louisiana, Mississippi, Utah and Ohio would immediately pass some prohibition.

"State legislators will introduce bills by the score," says Rebecca Hagelin of the conservative lobbying group Concerned Women for America. "Some will seek to outlaw it; some will permit it only to save the mother's life." Pro-lifers suggest that only a few states would go so far as to protect the unborn from the moment of conception. More states would simply restrict a woman's ability to have an abortion without consulting her husband or parents.

Public opinion about Roe has always been split, a situation that was not ameliorated last week by the disclosure that Norma McCorvey, "Jane Roe" of the famous lawsuit, had not been gang-raped, as she claimed when she sought an abortion in 1970. Just as the Roe decision was a catalyst for the right-to- life movement, restrictions on it could galvanize millions of pro-choice activists. "What this means for women is years of unending battles at the state level," warns Political Strategist Ann Lewis. "We will return to trench warfare." That prospect must fill politicians with dread. Since 1973, lawmakers could hide behind Roe, claiming that although they personally objected to abortion, the court had ruled. With Bork on the bench, they may be forced to take a stand on one of the nation's most intractable issues.

With reporting by Anne Constable/Washington