The imposing marble-and-mahogany chamber of the U.S. Supreme Court seems too stately a place for dropping a political bombshell. Yet last week, while opposing bands of demonstrators taunted each other with noisy chants and protest signs on the plaza in front of the court, that is precisely what happened. Seven of the nine Justices emerged from behind the red velvet curtain and took their seats. In the hushed chamber, Chief Justice William H. Rehnquist read in his singsong, quivering voice excerpts of the long-awaited decision of the divided court in the case of Webster v. Reproductive Health Services. Before he was through, it was clear that the country was about to be plunged into the most corrosive political struggle it has experienced since the debate over the Viet Nam War. In the opinion, a conservative plurality of three members, joined in part by Reagan appointees Antonin Scalia and Sandra Day O’Connor, suggested that as early as next year the court may overturn Roe v. Wade, the landmark 1973 ruling that established the right to terminate a pregnancy. A Missouri law banning the use of state facilities and prohibiting state employees from performing abortions was upheld on the ground that it “leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all.” Another provision, requiring physicians to perform tests to determine whether a 20-week-old fetus could survive outside the womb, was also upheld, in part on the ground that such testing “permissibly furthers the State’s interest in protecting potential human life.” While stopping short of reversing Roe, Rehnquist seemed to be inviting a test case that might result in its overthrow. “The goal of constitutional adjudication,” said the Chief Justice, “is surely not to remove inexorably ‘politically divisive’ issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them.” Democracy usually requires that its battles be fought in the legislatures. But in the 16 years since Roe was decided, the nation has avoided a full-scale political brawl between those at one extreme who feel that a fetus is a mass of dependent protoplasm to be extracted without regret and those at the other pole who believe that an embryo deserves protection from the moment of conception. With Roe in place, politicians could pay rhetorical homage to the pro-life movement without having to act on their professed dislike of abortion. Pro-choice groups, confident that the Roe ruling had established an unassailable constitutional right, grew smug and complacent. Those days are over. Pro-life groups, energized by the hope of overturning Roe, and pro-choice forces, galvanized by fear of that prospect, vow to turn every election in every state into a referendum on the issue. Both sides claim the moral high ground, but the battle surely will be fought at a lower — much lower — level. One side accuses the other of baby killing, showing pictures of fetuses contorted in pain as surgical instruments poke at them; the other warns of the enslavement of women by states if they force those who become pregnant to remain that way.
