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"I am pleased with the Supreme Court's decision," President George Bush said in a written statement released after the Court issued its ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey on June 29. That was a little surprising, considering that a majority on the Court had just voted to uphold Roe v. Wade, the 1973 decision giving constitutional status to abortion rights. The same day, Bill Clinton called a press conference to assert that "the constitutional right to choose is hanging by a thread."
Both sides in the abortion controversy rushed to declare defeat. Kate Michelman, the president of the National Abortion Rights Action League, said, "George Bush's Court has left Roe v. Wade an empty shell." Abortion-rights leaders called the Court's formal endorsement of Roe meaningless. The Court accepted restrictions on abortion rights which it had struck down as unconstitutional in 1983 and 1986, such as a twenty-four-hour waiting period and an informed-consent requirement.
That did not mollify anti-abortion leaders, however. One of them, Randall Terry, complained that "three Reagan-Bush appointees stabbed the pro-life movement in the back." He was referring to Justices Sandra Day O'Connor, Anthony M. Kennedy, and David H. Souter, who voted to reaffirm Roe. Two other Reagan-Bush appointees, Justices Antonin Scalia and Clarence Thomas, argued that the Court should have overturned Roe.
What we have here is a muddle. As long as the issue remains muddled, it will not have much impact on the presidential election. Which is exactly what the Republicans want.
That is not what pro-choice and prolife leaders want. For them, the 1992 campaign is a battle for saliency. They want to heighten their supporters' concern so that the abortion issue will determine a substantial number of votes. Their constituencies have to feel threatened -- which is why both sides claimed defeat in the Pennsylvania case.
The problem is that most Americans have a muddled view of abortion: they are generally pro-choice, but willing to accept the kinds of restrictions imposed by the Pennsylvania law. That is more or less the Supreme Court's position. The Pennsylvania decision was an invitation to voters not to think about abortion, which is exactly what most voters want to do. The battle for saliency means forcing people to think about it, and to vote the issue; it means turning the 1992 election into a referendum on abortion. That has never yet happened to a presidential election.
A lot of Democrats want it to happen this year. As much as the Republicans are playing down the abortion issue, the Democrats are playing it up: they know there are more potential pro-choice voters than pro-life voters. But the campaign has to activate the pro-choice vote. That's why the Democrats showcased their pro-choice platform at the convention in July. They invited Kate Michelman to join the nominees on the podium. "This is one of the things the presidential election is about," Clinton has said.
Republicans don't want the election to be about abortion, and the polls show why. In May of this year, according to a Times Mirror survey, the American public opposed "changing the laws to make it more difficult for a woman to get an abortion" by two to one. People believed that Bill Clinton was opposed to it as well. By a nearly two-to-one majority, however, they knew that George Bush favored restricting abortion. Bush's position is out of line with public opinion, and the voters know it.
But they have known it for some time. In fact, they knew it about Ronald Reagan, too. What has saved the Republicans from disaster for twelve years is one simple fact: abortion has not been a salient issue to most voters. In January, when the Gallup Poll asked voters to rate the importance of sixteen issues, abortion ended up at the bottom of the list, tied for last place with foreign affairs. As long as voters felt that way, Republicans could expect the same thing to happen this year that happened in 1984 and 1988. Only a small number of votes would b be determinedy the abortion issue, and those would be mostly on the antiabortion side. In the two most recent presidential elections, according to the exit polls, voters who said that abortion was a major issue voted disproportionately for Reagan and Bush. The majority of people voting in those elections may have been pro-choice, but abortion didn't determine their votes. Abortion-rights advocates want pro-choice voters to feel threatened in 1992 -- threatened enough to vote pro-choice.
The sense of threat was very powerful in 1989, after the decision in Webster v. Reproductive Health Services. Pro-choice voters got angry -- and they got organized. They were a powerful force at the polls in November of that year. Pro-choice votes were critical in electing a Democratic governor of New Jersey, the first black mayor of New York, and, in Virginia, the first elected black governor in the nation's history.
By 1990, however, the threat to abortion rights no longer seemed imminent. Few states had moved to criminalize abortions. (To date, only two states, Utah and Louisiana, and one territory, Guam, have done so.) The pro-choice impact at the polls seemed to diminish with the threat.
Abortion-rights leaders want 1999 to be another 1989, not another 1988, and for that to happen, pro-choice voters have to feel threatened again. The Pennsylvania case, like the Webster case, has to make them angry. But how do you demonstrate to voters that a right just reaffirmed by the Supreme Court is "hanging by a thread"?
You have to remind them that four justices said they were ready to overturn Roe. One more vote and Roe is history. Justice Harry A. Blackmun, the author of the 1973 Roe decision, warned of just that possibility when he wrote, "I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light." They may not have to wait long: as Justice Blackmun reminded the country, "I am 83 years old. I cannot remain on this Court forever." And yet the justices appointed by Reagan and Bush voted 3-2 to uphold Roe. If Bush is re-elected, will his next Court appointee be another Souter or another Thomas?
The critical electoral consideration is not how many voters are on each side but how many voters on each side care deeply about the issue. Anti-abortion voters have been dissatisfied with the status quo since 1973 -- and they have voted the issue. Politicians knew it was risky to come out in favor of abortion rights, even if most of their constituents were pro-choice. They knew they would lose more votes from the anti-abortion minority, most of whom would vote against them simply because of their position on abortion, than they would gain from the pro-choice majority, few of whom would vote for them simply because of their position on abortion.
The same rule applies to other divisive issues -- gun control, for example. Let's say you take a poll and show a politician that his constituents divide 75-25 percent in favor of gun control. The politician knows what will happen if he votes to support a gun-control law: maybe five percent of the 75 percent majority care enough about the issue to vote for him for that reason alone, but he may lose 20 out of the 25 percent on the other side.
Politicians respond to intensity, not to poll numbers. They want to know what issues matter to the voters, not just how many people are on each side. One pro-choice activist put it this way: "Why are gun owners so politically powerful? There are more uterus owners than gun owners. When uterus owners begin to vote this issue, we will win."
To turn the Pennsylvania decision into a voting issue, abortion-rights leaders will have to provide more "spin," which is what they are trying to do. They have sponsored television commercials that dramatize the threat to abortion rights. They are pressuring Congress to pass the Freedom of Choice Act, which would put abortion rights on a statutory basis, and would likely be vetoed by Bush, creating the issue they want.
Abortion-rights leaders can also argue that Roe is already dead. They believe Roe died with the Webster decision, in 1989, when the Supreme Court indicated a willingness to change the standard according to which it scrutinized abortion legislation. In the Pennsylvania case the restrictions that six years ago had been held incompatible with Roe were judged acceptable. That is why pro-choice leaders call Roe an empty shell.
Chief Justice William Rehnquist calls it that too. Speaking for the four anti-Roe justices, Rehnquist said the Court "retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case." He wrote that the Pennsylvania decision leaves Roe standing "as a sort of judicial Potemkin Village, which may be pointed out to passers by as a monument to the importance of adhering to precedent."
Nevertheless, it will be difficult to persuade voters that Roe is dead when five justices voted to reaffirm it, and especially difficult because most voters do not disagree with the Court' s ruling in the Pennsylvania case. Polls showed majorities of 70 percent or more endorsing the restrictions upheld by the Court.
Opinions on abortion have remained fairly stable for the past twenty years. Almost every year since 1972 the National Opinion Research Center of the University of Chicago has been asking people whether it should be possible for a pregnant woman to have a legal abortion under various circumstances. Large majorities have consistently supported legal abortion if the woman's health is seriously endangered, if she has been raped, or if there is a strong chance that the baby will have a serious birth defect.
In most years the public has been opposed to legal abortion if the family is poor or doesn't want any more children, if the woman doesn't want to get married, or if the woman wants the abortion "for any reason." Those are all discretionary circumstances: what people have been saying in these polls is that they do not approve of abortion as a form of birth control.
That may explain why Americans have been uneasy about the status quo under Roe -- they feel that far too many of the 1.5 million legal abortions performed in this country every year are being done for the purpose of birth control. The public clearly has moral qualms about abortion, believing that it should be allowed only when there is a more compelling moral argument on the other side. To most people, a threat to the life or health of the mother, rape, or a serious deformity in the child are more compelling moral arguments. Birth control is not.
The debate over abortion seems to have no middle ground -- except in public opinion. In a Gallup poll taken after the Pennsylvania ruling, one third of the people responding thought abortion should be legal "under any circumstances." That figure is up from one quarter before the Webster decision, in 1989. Thirteen percent said abortion should be "illegal in all circumstances" -- down from 18 percent before Webster. Support for abortion rights has edged upward over the past three years. But almost half the public (48 percent) continues to say that abortion should be legal only "under certain circumstances."
Politicians have one thing in common with voters: they don't want to think about the abortion issue. They want to demobilize the debate and get the issue off the agenda. That is especially true for Republicans. President Bush has said, "We have room in our party for people that feel...pro-life or pro-choice. The Democratic Party is the same way." Even though Democrats intend to run on the issue this year, they don't want to get too far from the muddle of public opinion. Bill Clinton told the delegates at Madison Square Garden, "I am not pro-abortion. I am pro-choice." Politicians are doing the same thing the Supreme Court is doing on this issue. They are muddling through.
Copyright © 1992 by William Schneider. All rights reserved.