Both inside and outside the U.S. Supreme Court last week, the endless argument over abortion came to a critical confrontation. Outside there was a | raucous standoff on the courthouse steps and plaza, where some 200 demonstrators, pro and con, sang, chanted and shouted. Inside, where the noise could not penetrate, the nine Justices were assembled to hear arguments in William L. Webster v. Reproductive Health Services, a case that could leave in tatters the pivotal Roe v. Wade decision that legalized abortion in 1973. In both places many of the issues were the same. But inside, though the language was less heated, it had more weight. During the one-hour courtroom session, attention was fastened upon the questions posed by the pivotal Reagan-appointed Justices: Anthony Kennedy, Antonin Scalia and Sandra Day O’Connor. Their inquiries to lawyers on both sides ranged far from the Missouri law restricting abortion to the larger question of where to draw the borders of privacy rights. Do these rights encompass abortion? If not, is contraception excluded too? As for the four Justices who regularly support Roe, only John Paul Stevens took an active part in the proceedings. Harry Blackmun, who wrote the landmark opinion, sat silently throughout. Missouri Attorney General William Webster, the first to speak, attempted to minimize the impact of his state’s antiabortion law, which declares that life begins at conception and bars the use of public funds and public facilities such as hospitals to perform or assist in an abortion. The statute, which has never gone into effect, would also forbid doctors in publicly funded hospitals to “encourage or counsel” a woman to obtain an abortion. Webster argued that several of the law’s provisions would have little impact, implying that the court could uphold them without jeopardizing Roe. It was former Solicitor General Charles Fried, called back by the Bush Administration to argue this case, who made the broad attack, presenting the White House argument that Roe should be overturned. In the most interesting exchanges of the morning, O’Connor and Kennedy appeared to press Fried to explain how the court could reverse Roe without also undoing a crucial 1965 decision, Griswold v. Connecticut. In that ruling the court found that the right of privacy protects the decision to use contraceptives. Abortion is different, Fried replied, because it involves the purposeful termination of potential life. “We are not asking the court to unravel the fabric of . . . privacy rights which this court has woven,” he said at the beginning of his presentation. “Rather, we are asking the court to pull this one thread.” . That line provoked the sharpest rejoinder of the day, from attorney Frank Susman, who argued on behalf of the Missouri abortion clinic that is challenging the antiabortion law: “It has always been my personal experience that when I pull a thread, my sleeve falls off . . . It is not a thread he is after. It is the full range of procreational rights and choices.”
