REHNQUIST AND COMPANY: COURTING CONTROVERSY

Abortion may be the Vietnam of the 1990s. For women of child-bearing age, the abortion issue is as personal and as life-threatening as the draft was for young men in the 1960s. Last week’s Supreme Court decision rolling back abortion rights was the Gulf of Tonkin resolution. For millions of Americans, this means war.

In war, the first thing lost is neutrality. Politicians who have straddled the fence on abortion for 16 years will find themselves increasingly scorned and isolated.

Vietnam poisoned U.S. politics in two ways. It set liberals against conservatives. And it created mass indignation. The same is likely to happen with abortion.

In the 1960s, it was hawks versus doves. Now it’s the right-to-life movement versus the pro-choice movement. Right-to-lifers were invigorated by last week’s decision in the Webster case. Pro-choice activists felt threatened. The response is the same on both sides: mobilize.

“It’s going to be a bloody battle,” a Kansas state senator predicted. California legislators talked of “full-scale war.”

Abortion will be a major issue in every election for state and local office. It will play a role in every redistricting decision following the 1990 census. It will cast a shadow over every judicial appointment.

Vietnam poisoned U.S. politics in another way: It produced anger and revulsion in the general public.

Most ordinary Americans were neither hawks nor doves. They just wanted to end the war. Half a million Americans had been sent to fight a tragic and pointless war 10,000 miles away. Vietnam was tearing the country apart.

Most ordinary Americans today have mixed feelings about abortion. They are uncomfortable with both the right-to-life and the pro-abortion position. They don’t want to see abortion banned but they don’t like it used as a form of birth control.

Right now, polls do not show a high level of public anger, but that is what we will get if courts and state legislatures start doing what the Supreme Court invited them to do--restrict access to abortions. Pregnant women will discover they no longer have any choices. The state will start closing clinics and arresting doctors. The news media will report women dying because of illegal abortions. The public will be outraged, and the issue will tear the country apart.

Americans want the abortion issue resolved. What the court did last week was make that more difficult. The court refused to make a decision either upholding or revoking its historic 1973 Roe vs. Wade decision that defined abortion as a constitutionally protected right.

What the court did was “modify and narrow” the Roe decision. Instead of defining a new status quo, it invited legal challenges. “A plurality of this court,” Justice Harry A. Blackmun wrote in a scathing dissent, “implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases.”

Actually, the invitation was not so implicit. Here is what the court said:

“The goal of constitutional adjudication is surely not to remove inexorably ‘politically divisive’ issues from the ambit of the legislative process. . . . The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today.”

In other words, abortion rights are subject to regulation by politicians. The court said to politicians, “ We’re not going to decide the abortion issue--not now. You guys decide. We’ll let you know if you go too far.”

In the Webster case, Missouri banned abortions in public hospitals. The state also required doctors to perform expensive tests to see whether the fetus was “viable” if a woman was believed to be more than 20 weeks pregnant. Pro-choice groups said Missouri had gone too far. The Supreme Court said, “No. That regulation is just fine. Next case.”

Politicians hate the abortion issue. No matter what side they take, they make some people mad. They don’t need that kind of aggravation. Last week, the Supreme Court did just what politicians were terrified of--they turned the issue back to the politicians. A pro-choice leader said, “The days when politicians can remain silent on choice end right now.” A right-to-life leader said, “They’re not going to be able to hide.”

Every state legislature now is under pressure. Right-to-life activists are demanding restrictions at least as tough as Missouri’s. The Supreme Court has already agreed to hear cases next year that involve costly licensing regulations for private clinics and laws giving parents and spouses the right to veto abortions.

In the past, many politicians said they were personally opposed to abortion but would uphold “the law of the land.” Now what are they going to do? The Supreme Court has taken away their cover. Democratic Gov. Mario M. Cuomo of New York and Republican Gov. James R. Thompson of Illinois have to work out new positions if they expect to run for re-election next year. Sen. Pete Wilson, a GOP candidate for governor of California, said last week, “The courts have repeatedly ruled that (abortion) is the right of a woman. I don’t believe the governor of California should be a scofflaw.” As the campaign progresses, he may find it difficult to hide behind the courts.

Both parties will lose votes because of the issue--but Republicans will lose more. Anti-abortion voters have been angry about the status quo since 1973. The right-to-life movement succeeded in taking control of the GOP in 1980 when Ronald Reagan won the nomination. As a result, the Democrats have already lost most of their anti-abortion voters. They had someplace else to go.

The Democrats still have many blacks, Catholics and blue-collar voters unhappy with the party’s pro-choice position. But if they haven’t left already, they probably have good reasons to stay. Economic interests, union loyalties or civil rights keep them in the fold, despite reservations on abortion.

Take blacks, for instance. Women’s rights leaders were upset that the NAACP did not file a brief supporting the pro-choice position in the Webster case. Many blacks are opposed to abortion for religious reasons, and black leaders did not want to divide the civil-rights movement over this. In fact, some Republicans see abortion as an issue to win black votes.

They may get a few. But not many. Most blacks, including most religious blacks, give far more weight to racial and economic concerns than cultural values. They are likely to stay Democratic.

Polls show pro-choice sentiment increases with education. That was the most conspicuous--and embarrassing--feature of the April 9 pro-choice march in Washington; it was a march of upper-middle-class professionals. Here too, comparison with Vietnam is revealing.

Most of the young men drafted and sent to Vietnam were working class, but most of the anti-war activists were college students and educated professionals. Today, it is mostly poor women whose access to abortion is threatened. But it is mostly well-to-do women who march.

The polls show that anti-abortion sentiment increases with religion. Opposition to abortion is strongest among religious people--Protestant, Catholic or Jewish.

That’s why the GOP has a problem. Religious conservatives are a core constituency and so are upper-middle-class suburbanites. No issue is better calculated to drive those groups apart than abortion.

The more GOP candidates take anti-abortion positions, the more they will lose support from “libertarian” elements--yuppies, high-status women and Westerners. They find government interference in people’s private lives offensive. California, the largest state, is also one of the most pro-choice. And it has voted Republican, by fairly close margins, in every presidential race since 1948--except for Lyndon B. Johnson’s 1964 landslide. Abortion is an issue that could turn California’s vast white middle class away from the GOP.

Pro-choice voters are just beginning to feel threatened--and to organize. They are also beginning to learn how single-issue politics works. It’s a kind of blackmail. You say to politicians, “We don’t care what your position is on anything else. If you are with us on our issue, we’ll support you. If you are against us, we’ll get you.”

That is what the anti-war movement said: “We only care about one thing. Where do you stand on Vietnam?”

In the past, politicians knew it was risky to come out for abortion rights, even if most constituents were pro-choice. They knew they would lose more votes from the anti-abortion minority, most of whom would vote against them because of their position on abortion, than they would gain from the pro-choice majority, few of whom would vote for them because of their position on abortion.

No more. As the executive director of the National Abortion Rights Action League put it last week, “To politicians who oppose choice, we say: Read our lips. Take our rights--lose your jobs.”

With single-issue groups on both sides of the abortion issue, politicians will find out what politicians learned during the Vietnam War. When the electorate is deeply divided, you can lose more votes by not taking a stand than by taking a stand. As a Los Angeles radio commentator put it last week, “It’s unsafe to be safe” on the abortion issue from now on.