Abortion's Long Siege

They see themselves as the heirs of the civil-rights movement, leading a great national crusade on behalf of the weak and disenfranchised-except for those who believe they are following the early Christian martyrs, or the Dutch Resistance. They draw inspiration from Thurgood Marshall's 20-year fight against school segregation. They do have one advantage over Marshall: he didn't get to pick the justices who would rule on his case. This week, as the Supreme Court hears arguments in a case that may well mark the penultimate victory over Roe v. Wade, abortion opponents hope to show that in the calculus of American democracy, battles are won on the depth of your convictions, the strength of your arguments-and the number of justices you already have on your side.

Even so, as a political feat, outlawing abortion would be at least as impressive as overcoming segregation. By the 1950s, segregation was an entrenched local custom but it had no intellectual basis and no support outside the South. The right to choose an abortion, by contrast, was derived by the court from the cherished principle of personal privacy and is of vital interest to millions of Americans-as one of the largest mass demonstrations in this country's history showed a few weeks ago. To defy them is a feat of political levitation.

They did it, like yogis, through the power of concentration. The people who fought abortion in this country fought it with a holy fervor, in the spirit of Joseph Scheidler, a former Benedictine monk who persecutes abortionists with the righteous zeal of Ahab. Scheidler picketed his own daughter's high-school graduation last spring because the speaker, former Illinois governor James Thompson, had vetoed legislation to restrict abortions. ("I'm kind of used to it," says Catherine Scheidler. "I respect the fact that he's so dedicated.") Scheidler was the model for demonstrators throughout the country who struck annoyance into the hearts of obstetricians, their patients and doctors who happened to have the same name as obstetricians-like the Kansas City rheumatologist who was surprised recently to discover that a group called Ministers to the Pre-Born had been waving pictures of an aborted fetus outside his home. Scheidler helped inspire Randall Terry of Operation Rescue, the peripatetic martyr of the pro-life movement. Exhibiting an aborted fetus in a plastic jar to show what he is willing to go to jail for, Terry traveled to Buffalo, N.Y., last week to announce a new round of picketing: at abortion clinics, at the homes of doctors who perform abortions and, if need be, at the schools of the children of doctors who perform abortions.

But no social movement succeeds in America only on the strength of people who go to jail. The backbone of the antiabortion movement in America is in churches and groups like the National Right to Life Committee, the mainstream nondenominational organization. Its political-action committee contributed $1.5 million to pro-life candidates in the last presidential election year, more than twice as much as an equivalent pro-choice PAC donated. There are big pro-life groups for Roman Catholics and evangelicals, and dozens of other groups that few outsiders have heard of, for blacks, Hispanics, physicians, feminists and abortion "victims" (women who have had one). There is even a traveling ministry dedicated to publicizing the unique situation of Gianna Jessen of San Clemente, Calif., a 15-year-old girl whose mother tried to abort her; she survived but suffered mild cerebral palsy. Now, with her adoptive mother, Diana De Paul, she travels the country as a pro-life cheerleader and speechmaker, spreading a message of "education and forgiveness."

All through the 1970s and 1980s, groups such as these kept the abortion issue alive, chipping away at abortion rights in Congress, the states and, eventually, the courts. Their biggest success has been in stopping the government from paying for abortions. To the pro-choice movement, the implication was that the pro-life side was picking on poor women. But to groups like the NRLC, funding cases just presented the largest targets of opportunity. " We probably saved millions of lives" that way, says NRLC legislative director Douglas Johnson. And now the time is within sight, they believe, when they can hope to save them all.

Of course, luck had a lot to do with it. The alliance of pro-life groups with the Republican Party appears to have been a stroke of genius, but the crucial victory of Ronald Reagan in 1980 seems like a sure thing only in retrospect. The bottom line is that, of the seven justices who voted for Roe in 1973, only one-Harry Blackmun, who wrote the decision - still serves. Which is why Roe is almost certainly doomed, although unlike segregation, which fell with the righteous thunderclap of Brown v. Board of Education, abortion will more likely crumble under a pelting of quibbles. No one expects the court simply to declare abortion illegal, the way it declared it legal in Roe; at most, it will turn the issue back to the states.

The arguments this week concern a Pennsylvania law which created what prolifers call "protections" and the other side calls "restrictions" for women seeking abortions. These include a 24-hour waiting period, notification of the husband, permission of a parent (for minors) and " informed consent"--a requirement that doctors explain the abortion procedure to women. Both sides expect the court to uphold most of these provisions; the main question is how broadly the decision is worded. Ironically, the pro-choice side is the one pressing for a sweeping decision in the case. Such a ruling would galvanize pro-choice voters for the elections this fall. Some on the pro-life side are hoping for a more ambiguous decision. A number of other cases, from Utah, Louisiana or Guam (whose broad ban on abortions was overturned by a federal appeals court last week), could present another opportunity to dismantle Roe - safely after the election.

But no matter how many new justices are appointed, the court can change the law only in response to a case. Someone must present it with the right case and the right arguments. In more than a dozen cases that have come before the court since 1973, a key figure has been a soft-spoken law professor, a liberal Democrat who opposes abortion and over the years has become used to hearing, as soon as he introduces himself, the pensive remark: "Rosenblum - that's not a Catholic name, is it?"

Victor Rosenblum - the name and the man are Jewish - directs the legal arm of the pro-life movement, the Chicago-based Americans United for Life. For two decades the group has helped write pro-life bills in various states, and, as each was challenged, advised the pro-life side through the appeals. Rosenblum's biggest triumph came in the 1989 Webster v. Reproductive Health Services decision, upholding a Missouri law that placed stricter limits on abortions after 20 weeks. The tactics now bearing fruit for the pro-life side were hammered out at a conference of some 500 activists in Chicago in 1984. Rosenblum was a leading architect of the " incremental" approach, nibbling at the edges of Roe until the right to abortion becomes effectively meaningless. "What we're ultimately trying to do," he says, " is show that Roe is simply filled with holes"holes he helped put there.

Obvious as it sounds, this approach was resisted by many. It meant eschewing some of the pro-life groups' favorite arguments, because Rosenblum believed judges would not take them seriously - such as the assertion that a fetus is a "person" under the Constitution or that it feels pain during an abortion. Worse, to many in the movement, it smacked of selling out. The incremental approach implicitly tolerated some abortions, in the interest of eliminating most of them. For example, polls show that Americans overwhelmingly support the right to abortion in the so-called hard cases: rape, incest and a threat to the life of the mother. An unrestricted right to abortion for any reason is a much less popular proposition. Therefore, a law restricting abortion to just the "hard cases" would eliminate nearly 90 percent of the abortions actually performed and have a much better chance of passage than an outright ban. To Rosenblum it was clear that the fewer abortions, the better. But there is another school of thought in the pro-life movement, which is that the difference between 1.6 million abortions a year and one is meaningless; what counts is getting to zero. That is the absolutist position.

Judie Brown, 48, the mother of three children and the founder of the American Life League, is an absolutist. The league's " Preborn Protection Act" brooks no exceptions, not even to save the mother's life; such language is open to ?,creative interpretation," the league warns. Brown is also an absolutist on sexual morality, who believes that premarital sex is sinful. " You can't stop killing children in the womb until people start practicing abstinence," she says. She is an absolutist even on birth control. "Birth control leads to abortion," she says. "If birth control fails, then what do you do? Have an abortion." This is a pretty stringent program by the standards of many Americans, but Brown is hardly a voice in the wilderness; she says her organization has 270,000 members and a budget of $10 million, making it one of the largest right-to-life groups in the country.

Brown, like many leaders of the pro-life movement, is a Catholic. But her position on abortion was also shaped by particular circumstances, which she has in common with a surprising number of her peers in the movement. She grew up in a religious home in which abortion was not just not practiced but virtually unknown as a concept. (Tom Glessner, who heads the leading evangelical pro-life group, Christian Action Council, says that "abortion" was literally a dirty word when he was growing up; his mother wouldn't allow it to be spoken.) Brown had a personal experience with a handicapped child, a younger brother with Down syndrome. In recent years prenatal genetic testing made it possible to identify and abort fetuses with Down syndrome, which causes mental retardation. This practice strikes many pro-lifers as especially chilling, perhaps because a handicap actually personalizes the fetus; the mother isn't merely choosing not to have a baby, she's choosing not to have this particular baby. Glessner had a similar experience; his wife was a teacher of the handicapped. If we care for them once they are born, reasoned Glessner, why is it OK to kill them in the womb?

Presumably, it will take another hundred years of conservative judges before the country is ready to ban premarital sex. Presumably not all pro-lifers want to, either, and when they face the voters, they know better than to run on platforms like the American Life League's. When prochoice forces got a new, liberalized abortion statute on the ballot in Washington state last fall, the opposition pointedly did not accuse the supporters of the initiative of being murderers. Instead, they ran a sophisticated campaign that talked about everything but. Taxes, for example: an ad showed suburban couples commiserating over the burden of paying for publicly funded abortions "maybe even for wealthy women." The campaign conjured up the parental nightmare of daughters "taken out of school" for an abortion - "and you would not have to be notified." "We were trying to defeat the initiative," says Seattle adman Grant Jensen. " We were not trying necessarily to make moral statements." At one point in the campaign, a renegade church group sent out postcards with gory abortion pictures, resulting, says Jensen, in "a three-point drop in our numbers overnight." The initiative, expected to pass easily, squeaked through by less than half a percent. The pro-life side is claiming the results amount to a moral victory. The prochoice groups claim it's a victory only for sleazy advertising.

Clearly, though, the pro-life movement is repositioning itself for the state-by-state electoral struggles to come. It is trying out new and more progressive-sounding arguments on a population that may be running out of patience with theological disputes. Last year the National Conference of Catholic Bishops brought in Hill & Knowlton to advise them on public relations, and within months the results were apparent: the bishops took themselves off the air and hired a new spokesperson for pro-life activities, a sophisticated young lawyer named Helen Alvare, who describes abortion as a "human-rights issue." Bishop Rene Gracida of Corpus Christi, Texas, who became a pro-life hero in 1990 for excommunicating a doctor and two directors of abortion clinics, describes abortion as an issue of racism: "An insidious attempt is being made to control a segment of our population by killing children," he wrote in a pastoral letter in January. A onetime abortion-clinic director named Carol Everett travels the country describing abortion as a consumer issue: "Abortion is a skillfully marketed product sold to a woman at a crisis time in her life," she says. "If the product is defective, she can't return it for a refund."

Above all, the pro-life movement is audaciously attempting to reposition itself as a campaign for women's rights. In part this is intended to counter the pro-choice nightmare about a return to back-alley abortions. Olivia Gans, who heads a group called American Victims of Abortion, describes her legal 1981 abortion as "a violent, degrading event ... nothing more than mechanical rape." Her group commemorates women who died during legal abortions, although a study by former surgeon general C. Everett Koop found that legal abortion is actually 10 times safer than childbirth. (The study, begun in 1987, was never published because Koop was asked by President Reagan to show abortion was bad for women, and he couldn't do it.) But this is not just an argument about comparative mortality; it goes to the heart of how women see their lives. Alongside the familiar image of the self-centered Yuppie who doesn't want a pregnancy to interfere with her speech at the annual meeting, there is another taking shape: the ignorant, powerless young woman who is pushed into an abortion by her callow boyfriend who doesn't want a baby to interfere with his plan to buy a new motorcycle. " Society has a choice," says Alvare. "It can either answer the economic problems women face, and provide maternal leave, Medicaid, Medicare ... or it can have a wide-open abortion policy. Abortion is harmful and it is a sexist response that leads women to abortion clinics in the first place."

So the argument has come full circle: it is about human rights again, defined, now, not only in terms of the fetus but the woman herself. Will Americans accept the right-to-life argument that abortion oppresses women? What would Thurgood Marshall think?