Abortion in the spotlight

A narrow ruling upholding late-term abortions makes reproductive rights -- and the Supreme Court itself -- a hot issue this election year.

By Bruce Shapiro

Published June 29, 2000 6:04PM (EDT)

The final days of June are always nail-biting time for Supreme Court watchers, the time when the justices hand down their most contentious rulings and make their most portentous announcements. Elian Gonzalez was the cause cilhbre this time, at least as far as the media was concerned. And in a sense, all the attention was justified, even though the outcome of his Miami relatives' appeal -- rejected by 23 separate Florida and federal judges before landing on the high court's doorstep -- was never in doubt: Elian's marks the beginning of the end of the long Cuban embargo, as even congressional Republicans are beginning to recognize.

But with Elian safely on a plane to Havana (and the justices having fled town almost as quickly to their various summer haunts), the dust is settling on the Supreme Court's other closing-week decisions. Two of them -- the Nebraska partial-birth abortion case and Monday's reaffirmation of the Miranda rule for criminal suspects -- will have far greater effects on law and politics than the Elian farce, including the very short-term but consequential passions of the presidential election.

The next president will likely name three or more justices -- something neither candidate wants its voter base to forget. And if there was an early winner from Wednesday's decisions, it would appear to be Al Gore, who might have finally found issues that will rouse his flagging poll numbers with, among others, women.

The last time the Supreme Court's closing week carried such political baggage was June 1992. It was an abortion case that year too -- Planned Parenthood vs. Casey. A year earlier, the old civil rights warrior Thurgood Marshall stepped down from the court -- his place taken by President George Bush's combatively conservative nominee, Clarence Thomas. The future of reproductive rights seemed very much in doubt. In the end the court reaffirmed "the central holding" of Roe vs. Wade recognizing women's constitutional right to terminate their pregnancies. But the anxieties roused by that case more than any single issue shaped the presidential election, bringing Bill Clinton to office.

The court's decision in Stenberg vs. Cahart throws out Nebraska's ban on late-term abortion, which ostensibly occupied narrow ground. Nebraska's law banned abortion procedures that require the dismemberment of the fetus. That ban imposes "an undue burden upon a woman's right to make an abortion decision," wrote Justice Stephen Breyer for the court's majority. Breyer pointed out that the law would ban "the most commonly used method" for second-trimester abortions -- including many abortions fully legal under Roe vs. Wade. Doctors and nurses performing this common procedure, Breyer wrote, would fear "prosecution, conviction, and imprisonment" under the law, which also makes no exceptions for the health of the mother.

In legal or even medical terms, the impact of this decision may seem limited to Nebraska and the particular language of its law. The political impact, however, is belied by that narrow focus, resting instead with the margin of the decision and specific makeup of the court's majority. The margin: a desperately narrow 5-to-4. The pro-choice majority included the two justices highest on all court-watchers' likely-to-retire lists: 80-year-old John Paul Stevens, and Sandra Day O'Connor, 70, who has survived bouts with serious illness.

The court's pro-choice consensus also suffered a crucial defection in this case: the dissent supporting the Nebraska law was written by Justice Anthony Kennedy, who had been the unexpected swing vote toward reaffirming Roe back in 1992.

And as with the broader Casey decision in 1992, this abortion case produced an unusual flurry of concurring and dissenting opinions from justices with passionately incompatible views -- what Justice Ruth Bader Ginsburg called "the emotional uproar caused by an abortion case."

Heightening the "emotional uproar," the most notable dissent to today's decision was written by a justice who until now was most famous for his silence on abortion and Roe vs. Wade: Clarence Thomas. In his famously contentious 1991 confirmation hearings, Thomas refused to be drawn out on his views of Roe, claiming (to much incredulity) that as a Yale law student at the time when abortion was legalized in 1973 he had never discussed the subject. Since then, he has signed onto the anti-abortion rulings of Chief Justice William H. Rehnquist and Justice Antonin Scalia. But he has never uttered a word on the subject himself.

Today, Thomas broke his long silence. He called the court's original decision to legalize abortion in 1973 "grievously wrong." The 1992 Casey decision, written by Justices (and Reagan-Bush era nominees) O'Connor, Souter and Kennedy "was constructed by its authors out of whole cloth," and "has no origins in nor relationship to the Constitution." He called Wednesday's Nebraska decision the product of "indefensible logic."

What all this adds up to: Clearly, the Supreme Court is not through with reproductive rights, and Stenberg vs. Cathart abruptly makes the Supreme Court a very live issue in this election year, threatening to give Gore the same anxiety vote that helped propel Clinton in 1992.

Bush's antiabortion constituency, too, may be emboldened by Wednesday's decision. But for him this is a decidedly mixed blessing. On the one hand, an energized religious right can turn out voters; on the other hand, a Bush too aggressive in his Supreme Court picks could alienate socially moderate women who until now have been willing to look the other way at Bush's record on reproductive rights.

The long shadow of Casey hangs over the court's reaffirmation of Miranda in Monday's Dickerson vs. Virginia, too, though for reasons that may be less obvious. When back in 1992 O'Connor, Kennedy and Souter together wrote the opinion reaffirming "the central holding" of Roe vs. Wade, they argued, among other things, that abortion rights should stand because they had become so inextricably woven into the fabric of everyday life.

So too this week with Miranda: Rehnquist, who has spent most of his career trying to shred the kind of protections for criminal defendants represented by Miranda, wrote this week that "you have the right to remain silent" has become too deeply embedded in policing and American culture to justify overturning.

Yet -- as the Casey ruling did with abortion -- Rehnquist defended past and future "refinements" that reduce "the impact of the Miranda rule on legitimate law enforcement" -- suggesting that other such "refinements" may yet pass muster. In other words, the long debate about crime and punishment -- which has never been more intense than in this election year, with an epidemic of false-conviction and police-misconduct stories from Los Angeles to New York troubling the public conscience -- will only grow more intense in coming Supreme Court terms.

Though the next president will likely choose three justices, the party and ideology of presidents is not always an accurate guide to how they will shape the court. Souter was nominated by George W. Bush's father as a "stealth nominee" who could get conservatism past a Democratic Senate which had already rejected the higher-profile Robert Bork. He was a friend of John Sununu, the arch-conservative chief of staff in the Bush White House. Yet on the court, he was taken under the wing of Bill of Rights champion William Brennan (an Eisenhower nominee). Souter has inherited the Brennan mantle as the court's most reliable civil libertarian, on no issue more clearly so than reproductive rights.

But among recent nominees, Souter is the exception. The nomination process has become increasingly polarized beginning in the 1960s, when Sen. Strom Thurmond, R-S.C., fought the nomination of pro-civil-rights lawyer Abe Fortas, and accelerated under Reagan, the first president to explicitly use Supreme Court appointments to advance a conservative agenda. Few nominees offer a surprise like Souter. Instead most are thoroughly consistent with their roots.

Some African-American defenders of Clarence Thomas' nomination, for instance, hoped he would throw off his Reaganite mantle and grow into a sympathetic embrace of civil rights. Instead he has backed only further into the court's rightward fringe, voting most often with ardent conservative Scalia. On the other hand, Clinton nominees Ginsburg and Breyer are each, in their way, classically Clintonian -- Ginsburg's feminism offset by sometimes punitive views on criminal justice; Breyer a liberal technocrat who is never happier than when building arguments on the fine points of telecommunications regulation or (as in today's majority opinion) medical procedure.

It all means the "emotional uproar" represented by the Supreme Court's future has just entered the presidential race, in a big way. This week's decisions have made abortion rights, and the Supreme Court in general, the sleeper issues of the summer.

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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