Under The Radar

By Karen Tumulty; Viveca Novak

George W. Bush's first workday was also the day that tens of thousands of antiabortion activists gathered in Washington for their annual protest against the landmark Supreme Court decision guaranteeing a woman's right to abortion. So new was the Bush team on Jan. 22, 2001, that most officials hadn't yet been issued their White House telephone extensions. Kansas Senator Sam Brownback frantically dialed cell-phone numbers from the rally's stage beneath the Washington Monument. When he finally reached Tim Goeglein of the Office of Public Liaison, Brownback put his request for a show of support bluntly: "If you're going to take this position, now's the time to announce." Less than an hour later, it was Brownback's cell phone that rang. In his first reversal of Clinton Administration policy, the new President--who had downplayed abortion during his campaign--said he would block federal money from international family-planning organizations that offer or counsel abortion. The crowd roared when Brownback delivered the news.

Two years later, as the 30th anniversary of Roe v. Wade is marked this week, the antiabortion movement finds itself at a moment of both possibility and tension. Some think Bush has lived up to the promise of that early victory. "He's been a star," says Republican Congressman Chris Smith of New Jersey, one of the House's leading abortion foes. But others say the President is in danger of squandering what they see as the biggest opportunity abortion opponents have had since Roe to severely restrict--maybe even ban--abortion. "He has tremendous political capital, and I wish he had said more to America and not just to us," says Gary Bauer, a conservative activist who ran against Bush for the G.O.P. nomination. "They've made a calculation: take action, but with the least discomfort to other portions of the coalition--some of the more moderate suburban women who don't react to this with the same enthusiasm I might."

Abortion is on the decline in this country, no matter how you measure it: in total numbers, the rate at which women choose abortion or the percentage of pregnancies that end in abortion. Between 1990 and 2000, the number of abortions dropped 18%, from an estimated 1.6 million a year to 1.3 million, according to the Alan Guttmacher Institute, a nonprofit research organization that both sides of the debate rely on for data. Twelve years ago, about 27 women out of every 1,000 of childbearing age had had an abortion; by 2000, the number fell to just over 21. And whereas 28% of those who found themselves pregnant in 1990 had an abortion, the number dropped below 25% two years ago.

Meanwhile, there are fewer and fewer doctors willing to perform the procedure. The number of physicians providing abortion is down to 1,800 nationally, from nearly 2,400 in 1992, and 87% of U.S. counties have none at all, according to the Guttmacher Institute. Another indicator: this month the National Abortion and Reproductive Rights Action League, the abortion-rights movement's leading organization, officially changed its name for the fourth time, to NARAL Pro-Choice America, dropping the word abortion and adopting the acronym instead.

With Congress and the White House in G.O.P. hands, abortion foes will push this year to get a ban on the late-term procedure they call partial-birth abortion passed (as it has been twice already) and signed into law (President Bill Clinton vetoed it both times). But G.O.P. strategists concede it is unlikely that other measures--like a bill to make it a separate crime to injure a fetus during an attack on a pregnant woman or legislation making it illegal to evade state parent-notification laws by taking a minor across state lines--will become priorities for the President or get through the closely divided Senate. "If all they can muster is the elimination of one abortion method, that's a loss," says former antiabortion lobbyist Teresa Wagner, editor of a new book of essays about the movement. "It's a catastrophic loss."

For its broader goals, the antiabortion movement still can't make the political math work. The Senate has a Republican majority, but at least 53 Senators are on record as favoring Roe. And the public is not prepared to see it overturned. In the latest TIME/CNN poll, 55% of respondents said they support a woman's right to have an abortion in the first three months of pregnancy.

At the same time, 60% of those polled said it has become too easy to obtain an abortion, which helps explain why opponents have been so effective in nibbling at the edges of the abortion question. Ever since a 1992 Supreme Court decision, Planned Parenthood v. Casey, opened the door for states to impose greater limits on the right to an abortion, activists have taken up the fight state by state, measure by measure. In the past seven years, 335 new restrictions have been put on the books around the country, according to NARAL. Most common are parent-notification laws, required waiting periods, and state-mandated lectures and literature about fetal development and alternatives to abortion such as adoption. In Alabama, women have to get sonograms before they can end their pregnancies. While a few states such as California have liberalized their laws, the trend is very much in the other direction.

As Bauer noted, the White House strategy seems to be to push many of its abortion actions under the radar, where they will not be noticed by moderate women voters. True, Bush made headlines with his nomination of the staunchly evangelical, antiabortion John Ashcroft for Attorney General and the decision not to provide taxpayer funds to develop additional fetal-stem-cell lines for medical research. But other moves barely made a ripple by comparison. A year ago, the Administration filed a brief supporting Ohio's partial-birth-abortion ban in an appellate court (not waiting, as it normally would, for the case to hit the Supreme Court). A few months later, it quietly removed from a government website information saying that abortions do not increase the risk of breast cancer. (A replacement fact sheet suggests a possible link, though major studies turn up no evidence for one.) Last March the Administration made fetuses eligible for the Children's Health Insurance Program, keying off the antiabortion groups' strategy of establishing "fetal rights" as a way of eventually undermining Roe. And just three weeks ago, the State Department sent a cable to its Agency for International Development (AID) offices worldwide urging them to ensure that U.S. funds weren't going to groups that provide abortion services--and suggesting that the AID offices surf the websites of funded groups as a way of checking.

Bush has also issued avowals that he will veto appropriations bills when the Senate has threatened to repeal existing restrictions on abortions. As recently as last Friday, he warned Congress that if a catchall spending bill under consideration omits even one existing curtailment of federal funds for abortion, his advisers would recommend a veto. "It's a mistake to underrate his focus," says Democratic Congresswoman Zoe Lofgren, an abortion-rights advocate who has found herself on the losing side of the abortion wars. "They are persistent, and they are insistent."

The partial-birth ban, if enacted, would be the biggest federal antiabortion initiative since the mid-1970s, when the government banned use of federal funds to provide abortions for poor women. But it is certain to face a legal challenge, and has lost in the courts before. In 2000 the Supreme Court knocked down all state partial-birth bans because they defined the procedure in ways that also included the most common type of second-trimester abortion and offered no exception to preserve a woman's health or life.

Court rulings like that have raised the stakes in what promises to be the real test of Bush's antiabortion agenda: his Supreme Court nominations. What keeps Roe standing is the razor-thin five-vote majority that has stood by the decision. If Bush replaces anti-Roe Chief Justice William Rehnquist (rumored to be retiring this year) with another like him, it won't change the calculus, though abortion will still loom huge in confirmation hearings. But when it's Sandra Day O'Connor's turn to go or that of any of the others who have upheld Roe, the stakes will be enormous. If Roe is overturned, NARAL predicts that 12 states are likely to ban abortion in all or most circumstances, and five others might.

With so much at stake, NARAL is spending $2.5 million this year on print and television ads, unprecedented for the group in a year with no presidential elections. On Tuesday night, every contender for the 2004 Democratic nomination is expected to appear at a NARAL dinner in Washington. And to make sure that abortion foes are not the only ones making a show of force in Washington, a big march is planned for before the presidential election.

So for now, 30 years after Roe, abortion has become a war of small skirmishes--but with both sides on high alert. "I think that this Administration and Congress are weaving a pernicious web of anti-choice initiatives that taken together strangle reproductive rights," says Gloria Feldt, president of the Planned Parenthood Federation of America. And that's one point on which the two sides can agree. "God willing, the human-life amendment [which would ban abortion in all cases except to save the mother's life] will someday become the law of the land," says Congressman Smith. "But meanwhile we are using every modest and incremental approach possible."