Judging life and death

EARLIER this month, in a Texas courtroom, a motion was filed to re-open Roe v. Wade, the 1973 case that made abortion legal in the United States.

The challenge is being brought by the one person who can do so: the 'Jane Roe' of Roe v. Wade, former fairground worker Norma McCorvey.

Attorney Allan Parker, of the Justice Foundation, a pro-life lobby, represents McCorvey. "Because Norma was a party, she can file a motion to reopen her own case that no one else in America could do," Parker says.

The motion will include affidavits from 1,500 women testifying that they were injured by abortion. They're part of Operation Outcry/Silent No More - a nationwide campaign in the US to 'speak the unspeakable'.

For America's pro choice lobby, the news that the woman who became the catalyst for legalised abortion was to head up the court assault on it could not have come at a worse time.

An entire generation has grown up since the Roe decision. Over the decades, public opinion has remained remarkably steady. Most believe abortion should be legal, but rare.

But interest groups on both extremes have continued to battle for the upper hand. When Bill Clinton was in the White House, abortion-rights advocates grew complacent, knowing he would veto any draconian measure the Republican Congress tried to pass.

Anti-abortion forces, fuelled by their belief that lives were at stake, only grew more determined.

By the time George W. Bush took office, abortion opponents had readied a raft of new restrictions and delighted at the prospect of filling Supreme Court openings with a supporter or two.

Though abortion-rights activists have been predicting the downfall of Roe for years, they may have more reason to worry now.

In January, 2002 they targeted six Senate seats they hoped supporters would capture. In November, they lost all but one.

Since 1995, states have enacted more than 300 abortion restrictions.

And Congress has voted on 148 abortion-related measures all but 25 were defeats for abortion rights.

"All the elements are there to take us back to the pre-Roe days,' says Planned Parenthood's Gloria Feldt.

The Roe doomsayers believe the current composition of the US Supreme Court is such that all it requires is one more conservative member to ensure that the case is overturned.

But, in reality, say some legal analysts, both sides may be exaggerating the stakes. One new anti-abortion justice isn't likely to change the Supreme Court's outlook on Roe.

And even if a new court did overturn it, few states would ban abortion outright, says Emory University legal scholar David Garrow.

"Thirty years from now we'll be in about the same position," he predicts.

However, the latest court challenge is likely to prove a formidable one. Norma McCorvey says she regrets her role in Roe v. Wade and believes the Supreme Court's decision is no longer valid because scientific and anecdotal evidence has come to light in the last 30 years showi the negative effects of abortion.

"We're getting our babies back," a jubilant McCorvey said at a news conference while flanked by about 60 women, some who sobbed and held signs that read: "I regret my abortion".

In 1973, McCorvey was a 21-year-old carnival worker when, pregnant for the third time, she sought an abortion.

She agreed to be the plaintiff in a lawsuit seeking to overturn Texas's anti-abortion statute. The defendant, Wade, was a Texas government official.

On January 22 of that year, the United States Supreme Court struck down the State of Texas's criminal abortion laws, finding that the right to decide whether to have a child is a fundamental right guaranteed by the US Constitution.

The Supreme Court decision came after McCorvey had her baby. It was the third child she put up for adoption. McCorvey publicly identified herself as Jane Roe in 1980.

The 7-2 decision in Roe v. Wade was to have an immediate and profound effect on the lives of American women.

Before Roe, it is estimated that between 200,000 and 1.2 million illegally induced abortions occurred annually in the United States.

As many as 5,000 to 10,000 women died per year following illegal abortions and many others suffered severe physical and psychological injury.

During the 1960s and 1970s, a movement of medical, public health, legal, religious and women's organisations successfully urged one-third of state legislatures to liberalise their abortion statutes.

Roe v. Wade may have been a landmark decision but it was hardly radical. The decision was grounded in the same reasoning that guaranteed Americans the right to refuse medical treatment and the freedom to resist government search and seizure.

The Supreme Court recognised that a woman's right to choose was protected under the constitutional provisions of individual autonomy and privacy.

For the first time, the Supreme Court placed women's reproductive choice alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring the highest degree of constitutional protection - "strict scrutiny" - to choice.

The Roe decision galvanised the far right. The backlash reached its peak during the three terms of Presidents Reagan and Bush Snr.

Beginning in 1983, the US solicitor general routinely urged the Supreme Court, on behalf of the federal government, to overturn Roe.

In addition, when appointing Supreme Court justices, Reagan and Bush used opposition to Roe as a litmus test.

During this 12-year period, five justices - O'Connor, Scalia, Kennedy, Souter, and Thomas - were appointed.

Not one of these five, who still constitute a majority on the Court today, supports the "strict scrutiny" standard of review established by Roe.

Shortly after the Roe decision, state legislatures began passing laws to create exceptions to it or to open up areas of law that Roe did not directly address.

No other right under the American constitution has been so successfully undermined.

By 1989, after the arrival of Justices Kennedy and Scalia and the elevation of William Rehnquist to chief justice, there were no longer five votes to preserve reproductive choice as a fundamental right.

Three years later, as a result of the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the strict judicial scrutiny established in Roe was finally abandoned in a plurality opinion of Justices O'Connor, Kennedy and Souter.

Although the Court said it was not overturning Roe's central premise that abortion is a fundamental right, the Casey decision replaced the original "strict scrutiny" standard governing other fundamental rights for the lesser "undue burden" standard.

This opened the door to a host of state and federal criminal restrictions designed to steer women away from abortion and to promote the rights of the foetus throughout pregnancy.

Over 300 criminal abortion restrictions have been enacted by legislatures in the past six years alone, none of which would have been constitutional under the original Roe decision.

In 2000, eight years after the Casey decision, the Court agreed to hear another case that opened up Roe for re-examination.

During that period President Clinton had appointed two justices, Ginsburg and Breyer.

The first challenge to Roe in the 21st century came in the form of a Nebraska ban on so-called "partial-birth abortion" brought by the Center for Reproductive Rights.

The language of the Nebraska ban and the versions passed in 30 states was sweeping and broad and the court struck down the ban, finding it an unconstitutional violation by failing to include an exception to preserve the health of the woman.

The Roe opinion was grounded on four constitutional pillars:

the decision to have an abortion is accorded the highest level of constitutional protection;

legislatures cannot enact laws that force women to make one decision or another;

in the period before the foetus is viable, the government may restrict abortion only to protect a woman's health;

after viability, the government may prohibit abortion, but laws must make exceptions when necessary to protect a woman's health.

Only two of the four Roe pillars remain today. A woman's right to choose is still constitutionally protected, though not to the extent it once was, and states are still obliged to protect a woman's health or life.

That, say the pro choice lobby, indicates that Roe v. Wade is indeed doomed.