Pro-Choice Advocates Can’t Relax

The Supreme Court’s landmark ruling in Lawrence vs. Texas, which strengthened the constitutionally protected right of personal privacy, was a historic victory for all Americans. Ironically, it was issued as President Bush prepares to mount a major assault on women’s privacy by signing the first-ever federal criminal ban on safe abortion procedures.

Lawrence vs. Texas, a case in which two gay men were arrested for having sex in the privacy of their bedroom, was not the blanket endorsement of the right to privacy -- least of all a woman’s constitutional right to choose -- that some legal commentators proclaimed it to be.

Indeed, it is somewhat inscrutable that the same court that ruled so eloquently and convincingly in favor of a right to privacy stands at the doorstep of overturning precisely the same right when it comes to women’s personal reproductive decisions. In a cruel irony, the post-Lawrence-vs.-Texas era may also become the post-Roe-vs.-Wade world.

Advocates of the right to privacy and distinguished legal scholars, like David Garrow, a professor at Emory University, correctly note that the court’s reasoning in Lawrence should safeguard Roe vs. Wade. But in political institutions -- from Congress to the courts -- what should happen and what actually occurs occupy separate spheres. The raw political fact is that, despite the Supreme Court’s resounding endorsement of a right to privacy in Lawrence, a woman’s right to choose remains in grave danger.

Today, anti-choice leaders hold a monopoly on political power in Washington. Quietly but consistently, they are using that power to circumscribe a woman’s right to personal privacy.

Bush, who favors banning abortion outright, has signed nine executive orders targeted at a woman’s right to choose. Virtually all of his 43 nominees to the federal courts pose a threat to the constitutional right to choose and the right to privacy. All three of his federal budgets have attacked family planning and attempted to restrict abortion.

The president has issued 20 statements urging Congress to restrict reproductive rights. He has dispatched diplomats to United Nations conferences to proclaim in the name of the American people that “life begins at conception.”

During his administration, accurate information about abortion and family planning has been removed from government Web sites and replaced with political fantasies like the widely purported and even more widely discredited link between abortion and breast cancer.

For its part, Congress -- both houses of which are led by politicians who want to ban abortion -- has voted 19 times to restrict a woman’s right to choose since Bush took office.

Moreover, even to the extent that the right to choose still exists, it is for millions of women a right in name only. Since the Supreme Court relaxed Roe vs. Wade’s protections in the Casey decision more than a decade ago, states have enacted more than 350 restrictions on the right to choose, ranging from waiting-period requirements for abortions to arbitrary regulations that single out abortion providers for legal harassment.

Now, Roe vs. Wade itself is at risk. Even though six justices of the Supreme Court voted to uphold a privacy right in the Lawrence case, the most significant cases regarding a woman’s right to choose have been decided by a razor-slim 5-4 margin.

The mathematical implications are clear: If Bush has the opportunity to appoint just one justice, he could reverse the balance of power on the Supreme Court, clearing the way for a cascade of rulings allowing states and the federal government to limit reproductive rights. If he appoints two, Roe itself could be overturned.

If he is elected to a second term, Bush could eventually face three or more vacancies on the court. He has pledged to fill them with jurists in the mold of Antonin Scalia, who fiercely opposes Roe and whose harsh dissent in Lawrence dismissed the notion of a right to privacy. Consequently, a second Bush term would present a severe challenge to Roe’s survival.

Such is the perilous state of a woman’s right to choose on the morrow of Lawrence vs. Texas -- one of the Supreme Court’s most compelling and compassionate endorsements of the right to privacy. Some have said Lawrence’s endorsement of a privacy right renders Roe inviolable for all time. If only the courts, the president and policymakers agreed.

Kate Michelman is president of NARAL Pro-Choice America, formerly known as the National Abortion and Reproductive Rights League.