Reality Check for 'Roe'

At first glance, it appeared that the forces of the pro-life movement were on the march last week. The U.S. Supreme Court agreed to hear a case on partial-birth abortions, and the betting was that the justices would uphold a federal law that bans the controversial procedure. In South Dakota the state legislature voted to outlaw all abortions except to save the life of the mother. The legislation, which did not even include the usual exception for rape or incest, was clearly intended as a frontal assault on the high court's 1973 decision, Roe v. Wade, guaranteeing a woman's right to an abortion.

Does this mean that Roe' s days are numbered? Not exactly. On closer inspection, the abortion-rights battle is likely to be fought on the margins, limiting--but by no means eliminating--a woman's right to choose. The question of abortion is much more ambiguous than the louder voices on either side of the pro-life/pro-choice divide are willing to admit. The hard-line anti-abortion crusaders may be disappointed by the legal realities, at least in the short term. At the same time, the pro-abortion-rights interest groups are just beginning to grapple with an uncomfortable truth: that many of the million-odd women who have abortions every year are deeply troubled, if not guilt-ridden. "Our patients are not coming to, quote, 'exercise their constitutional rights'," says Claire Keyes, who runs a Pittsburgh abortion clinic. "They want to talk about prayer and forgiveness."

Even if Bush-appointed Justices John Roberts and Samuel Alito want to overturn Roe (not a certainty), there is still a five-vote majority on the court to uphold the precedent, which was reaffirmed as recently as 1992. For that simple reason, trying to reverse Roe now would be a "strategic loser," says James Bopp, general counsel of the National Right to Life Committee. The federal courts would likely strike down the South Dakota law, and the Supreme Court would either refuse to hear the case or--worse for the pro-lifers--once again re-affirm Roe, say conservative legal strategists. Pro-life politicians, however, are apparently more interested in playing to their base. Daniel McConchie of Americans United for Life tried to warn Rep. Roger Hunt, the chief Republican sponsor of the South Dakota bill, that his approach could backfire. "He wasn't even interested in talking to me," said McConchie. "He had his mind made up on what he wanted to do."

States may have more luck chipping away at abortion. There are bills in many state legislatures to give fetuses "personhood" and requiring waiting periods and pre-abortion counseling. Some states are considering laws to require women to get an ultrasound image before obtaining an abortion.

Though a narrow majority of Americans say they are pro-choice, recent polls show that roughly two out of three favor some restrictions on abortion. The anecdotal evidence is growing that women have moral qualms about any abortion, even if they feel compelled to have one. The pro-life movement has done an effective job of showing that a fetus is not just a "blob of tissue," says Peg Johnston, who runs an abortion clinic in New York state. Her patients now talk about " 'babies' " and " 'killing'," she says. "At first I thought they were picking up the language from [anti-abortion protesters] outside. But then I started really tuning in to my patients, and I realized, 'She really feels that way'."

A growing number of clinics are coming up with coping strategies. At her Pittsburgh clinic, Claire Keyes encourages patients to write their feelings on a paper heart that she later tacks to the waiting-room wall. "I love you even though I know in my heart I can't keep you," reads one of about a thousand hearts, which have now overflowed into binders. Keyes gives each patient a polished semiprecious stone to imbue with whatever meaning she wants. The two clinics that permit late-term abortions let their patients hold the fetus in a blanket.

The language of pro-choice politicians has started to reflect the grass roots. Abortion is a "tragic choice," says Sen. Hillary Clinton. But the pro-abortion-rights groups are still partly in denial. Last month William Saletan of Slate, the online magazine, wrote an op-ed piece in The New York Times that has set off a buzz of controversy. "It's bad to kill a fetus," wrote Saletan. "You can't eliminate the moral question by ignoring it." But Nancy Keenan, the new president of NARAL, throws up her hands at Saletan's characterization of abortion as "bad," and exclaims, There it is again! Judgment!" Frances Kissling, head of Catholics for a Free Choice, is pushing for "more honesty about ambiguity," as she puts it. "There is a deep-seated fear that if you address the moral issues, you're going to lose," says Kissling. "But we're losing anyway. It's only by addressing the moral issues that we'll get some relief on the political questions."

This week Kissling and the Center for American Progress, a liberal think tank, are hosting an unusual sum-mit meeting in Washington between old-line true believers and middle-of-the-roaders. They are unlikely to reach a consensus, but at least they will begin facing important questions about morality and abortion.