by Susan E. Wills, Esq.
May 7, 2004
Until this year, the last major pro-abortion march took place in Washington in 1992. President George Bush was running for re-election. And unbeknownst to most of us, Roe v. Wade was on the brink of being overturned.
We recently learned from Justice Harry Blackmun's personal papers that Chief Justice Rehnquist had already written and circulated a draft majority opinion in Planned Parenthood v. Casey, reversing Roe when Justice Anthony Kennedy switched sides. The Casey decision, issued two months after the 1992 march, upheld Roe 5 to 4. The Court's argument was not that Roe was constitutionally sound or well-reasoned, but that people had relied on the law for 20 years and the Court did not wish to appear susceptible to politics or public opinion!
There's no evidence that the 1992 pro-abortion march influenced Justice Kennedy's eleventh-hour decision. But we know that abortion politics was foremost in the minds of some justices and clerks.
One Blackmun aide advised: "If you believe that there are enough votes on the court now to overturn Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage" (C. Lane, "How Justices Handle a Political Hot Potato," Wash. Post, 3/5/04, A1).
In Casey, Justice Blackmun warned he could not "remain on this Court forever" and a future judicial appointment might provide "the single vote necessary to extinguish" Roe v. Wade. After the November 1992 election, a clerk wrote Blackmun: "It was certainly thoughtful of the national electorate to give you such a delightful early [birthday] present. I assume that the Clinton victory will lighten your load somewhat" (Ibid.). Blackmun's load was indeed lightened by the appointments of Ruth Bader Ginsburg and Stephen Breyer, both strong abortion supporters.
The Roe "crisis" which gave impetus to the ironically-named "March for Women's Lives" this year is not a pending Supreme Court case; it is impending Supreme Court retirements. March organizers warn that "Roe is hanging by a thread" and a change of even one justice could mean a return to "back alley" and "coat hanger" abortions. The charge is ludicrous, not least because only three current Justices would likely overturn Roe. Hyperbole aside though, their goal is to safeguard and solidify a pro-abortion majority of justices on the Court. That is why they are throwing all their support behind the presumptive nominee, Senator John Kerry, who has promised that if elected "I will only appoint Supreme Court Justices who will uphold a woman's right to choose."
Public support of abortion has steadily eroded over the past decade. In April, for example, a Zogby poll found only 13% support for abortion by the Roe standard – legal abortion at any time and for any reason during pregnancy – compared to 56% in favor of banning abortion entirely, or restricting it to the narrow circumstances of life endangerment, rape or incest. Almost two-thirds believe abortion should not be permitted after a heartbeat begins (4th week of life) or brain waves are detected (8th week). And pro-life initiatives, particularly at the state level, are being introduced and enacted in record numbers. The stakes could not be higher for abortion supporters, and the battle over Supreme Court vacancies could be their Waterloo.
Susan Wills is associate director for education, U.S. Conference of Catholic Bishops' Secretariat for Pro-Life Activities.