What Women Want : Why One Seat Can Mean so Much on the Court

If Robert H. Bork had been confirmed as a justice of the U.S. Supreme Court, Roe vs. Wade would no longer be the law. Prayer could be mandated in the public schools. America would be a different place.

Instead, Anthony M. Kennedy took that seat. Three years ago, he was one of four justices who gave notice that he was ready to overrule Roe. This week, he changed his mind. Confirmation battles matter.

Monday’s decision was greeted with much hand-wringing and political posturing. The anti-abortion side was understandably disappointed; they expected better. But the pro-abortion rights side, at east publicly, seemed equally disappointed. They had all but abandoned the court going into this case, believing that abortion rights could only be protected politically, not legally, and looking to the court decision to provide no protection for women but a political rallying cry for the fall. They expected worse from the court, and then they acted as if they’d gotten it. The decision, they said, was a spear through the heart of Roe. Don’t be fooled, ads screamed, Roe vs. Wade is dead.

With all the political spin painting the decision as a muddled near-disaster, it is easy to lose sight of just what a triumph it was. “Make no mistake,” Justice Harry A. Blackmun, the author of Roe, wrote, “the joint opinion of Justices O’Connor, Kennedy and Souter is an act of personal courage and constitutional principle.” Two Reagan appointees and a Bush appointee, joining a Nixon appointee and a Ford appointee, thoughtfully and eloquently rebuffed the efforts of the administrations that had appointed them and reaffirmed that the Constitution protects the right of a woman to terminate her pregnancy before viability. It is true that Blackmun is 83 years old, and in this sense, Roe does hang by a shred. But Monday’s decision also proved that court packing isn’t as easy as people think--at least when the Senate is doing its job.

Justices Sandra Day O’Connor, David H. Souter and Kennedy have erected a moderate break wall against the court’s rightward trend. They provided the critical votes as well in the recent school-prayer case, in which the court, again by 5-4, recognized that the love for God of a religious people is best expressed by not enforcing it on others.

Women have been arguing for years that having a woman in the room, whether it is the Supreme Court or the Senate Judiciary committee, makes a difference. Last week, it did. O’Connor’s opinion for the court reflected the sensitivity to the realities of pregnancy and lives of women that a woman can bring to a position of power. She wrote of the generation that “has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions;” she recognized, in more detail than any Supreme Court opinion I have read, the plight and the desperation of women physically and psychologically abused by their husbands, and concluded “(a) state may not give to a man the kind of dominion over his wife that parents exercise over their children.”

She wrote eloquently of what makes abortion “a unique act,” emphasizing not the woman’s relationship with her doctor, as Roe did, but the woman’s autonomy: “The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the state to insist she make the sacrifice. Her suffering is too intimate and personal . . . . The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”

Monday’s decision did not, of course, end political or judicial debate about abortion. But it is ironic that the anti-majoritarian, unelected court came closer to articulating a consensus position than most politicians have. The political debate, by contrast, has become more painful, more divisive and more dishonest than it needs to be.

Advocates on both sides can find polls to support them, because most Americans find the issue more complicated than the pollsters’ usual questions. As a people, we are overwhelmingly pro-choice: We believe the ultimate decision must belong to the woman and not the government, until the fetus is viable. But we aren’t happy about the 1.5 million abortions every year. “Permit but discourage” is probably the best summary of where America stands, though many pro-choice advocates, and the politicians they support, have been reluctant to say that--fearing their honesty could be used against them.

That is the line the court attempted to draw. “What is at stake,” O’Connor reasoned, “is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.” The woman has the right to terminate her pregnancy; but the political majority, acting through the state, can constitutionally “express a preference for normal childbirth” as long as that preference does not impose a “substantial obstacle” or “undue burden” on a woman’s ability to choose abortion. The decision makes clear that laws prohibiting abortion, like those passed in Louisiana, Guam and Idaho, are unconstitutional; it leaves unclear the status of laws regulating private insurance, or imposing 72-hour notice provisions instead of the 24 hours imposed by Pennsylvania, or requiring even more detailed, and biased, “informed consent” warnings than Pennsylvania’s.

None of the regulations upheld by the court on Monday would stop the average middle-class woman in a major city from having an abortion. The problem, particularly with the waiting period, is the obstacle it may pose for those who must travel long distances and endure financial hardships to exercise their “right” to a legal abortion. If Roe vs. Wade is dead, and it is in much of America, it is not because of what the Supreme Court did Monday, but because of the success of the terrorist tactics that have left 83% of America’s counties without a single clinic or hospital willing to perform an abortion. That is a “substantial obstacle,” and while neither the court nor the Pennsylvania legislature may be directly responsible, the rules imposed by states must be scrutinized in light of the burden they impose.

The hard question is not whether the state should be allowed to discourage abortions, but how to do it fairly. Pennsylvania has chosen to discourage abortions not by making sex education and birth control and health care more widely available, so there are fewer unwanted pregnancies, but by making the abortion decision more difficult for the women who are least able to bear the burden of more children. That was an unfortunate choice. The burden could prove to be more substantial than the court found.

It remains to be seen how the Pennsylvania statute will work in practice, or what the legislatures will do next, or what the voters will do in November. Abortion is not going away as a political issue. But thanks to the wisdom of five justices, women in America need not rely solely on the political process. We can also trust in the court--not as much as some would like, but still as a bulwark. That is a tribute not only to the four men and one woman who comprised Monday’s majority, but also to our constitutional system.

There is a long tradition in the Supreme Court of justices coming into their own on the bench--of experience, life tenure and the responsibilities of the office changing those who serve there. Hugo L. Black was a former klansman. Earl Warren and William J. Brennan Jr., two of the court’s greatest liberals, were Dwight D. Eisenhower appointees. As justices, each of these men defied expectations, and changed history. Perhaps O’Connor, Souter and Kennedy will do the same. They certainly took a step in that direction on Monday.