The Supreme Court Ignites A Fiery Abortion Debate

Government must not interfere with the right of any woman to have an abortion in the first three months of her pregnancy if she so chooses. That fundamental and sweeping principle was established by the U.S. Supreme Court in 1973. But last week the court seriously compromised and restricted its edict. By a vote of 6 to 3, the Justices held in effect that the only women who can be certain of being able to have a medically safe abortion are those who can afford to pay for one. State and local governments, said the court, can choose whether or not to finance the abortions of needy women for nontherapeutic reasons--conditions that do not endanger their health.

The court's decision aroused once again the fiery moral, religious, medical and political issue that most elected officials would like to dodge. They will have no such chance. The court gives legislators in states and, by implication, the U.S. Congress the duty of deciding whether or not indigent women should be allowed to have elective abortions at public expense.

Cancer of Poverty. The fight will center around the familiar Medicaid program, which is jointly financed by the states and the Federal Government and needs the approval of both levels to work. Medicaid is the main way for welfare recipients to get safe abortions in the U.S.; it accounts for nearly a third of the 1 million or so operations performed annually. The court's ruling is already being hailed as a great victory for the forces determined to move Medicaid out of the abortion business. It removes any constitutional cloud over the decision of 15 states to deny payment to Medicaid patients for nontherapeutic abortions. These states are now free to cut off all nontherapeutic Medicaid abortions.

The dissent from the decision of the majority was angry, even bitter. Justice Harry Blackmun, who wrote the landmark 1973 decision, assailed the ruling as "disingenuous and alarming, almost reminiscent of 'Let them eat cake.'" Departing from Chief Justice Warren Burger, his "Minnesota twin," Blackmun roundly scolded his colleagues: "There is another world 'out there,' the existence of which the court, I suspect, either chooses to ignore or fears to recognize. And so the cancer of poverty will continue to grow." Justice Thurgood Marshall charged that the court's decision would "brutally coerce poor women to bear children," and said that he was "appalled at the ethical bankruptcy of those who preach a 'right to life' that means a bare existence in utter misery for so many." Justice William Brennan claimed the decision "seriously erodes" the principle, set forth by the court in its historic 1973 ruling, that it is unconstitutional for Government to interfere with a woman's choice whether or not to have an abortion.

The majority opinion, written by Justice Lewis Powell, held that there is nothing in the Social Security Act, which created the Medicaid program in 1965, that requires participating states to provide any specific medical treatment, including abortion.

The court brushed aside claims that providing funds through Medicaid for childbirth but not abortion violates both the equal-protection clause of the Constitution and a woman's right to make her choice unhindered by Government. The Justices conceded that "the state may have made childbirth a more attractive alternative, thereby influencing the woman's decision," but nonetheless ruled that it did not really eliminate her free choice, since privately funded abortions still were possible--even though the woman might find it impossible to afford one.

The court's majority was perhaps on firmest ground in contending that the whole question of public funding of abortion ought to be resolved by legislators rather than by judges. Wrote Powell: "We leave entirely free both the Federal Government and the states, through the normal process of democracy, to provide the desired funding. The issues present policy decisions of the widest concern. They should be resolved by the representatives of the people, not by this court.''

Presidential Support. But the "representatives of the people" are just as hesitant to grapple with the issue, one that matches militant right-to-lifers against dedicated pro-abortionists. There is no practical way to compromise the issue. Antiabortionists feel that life begins at the moment of conception and that abortion is therefore murder; pro-abortionists believe that terminating an unwanted pregnancy is a personal decision that should be left to the conscience of the woman rather than be made unlawful. Paying far more attention to preventing undesired pregnancies is one measure on which the contending sides may agree--but no contraceptive has yet won wide enough acceptance to ensure that kind of solution.

The main battle arena is Washington, where the antiabortionists have the tacit support of President Jimmy Carter, who personally opposes abortion and has repeatedly said that he does not think the Federal Government should do anything to encourage it. Almost alone at the Department of HEW, which administers Medicaid, Secretary Joseph Califano shares Carter's view. When he submitted HEW's budget for the fiscal year beginning in October, he urged that no Medicaid funds be used for nontherapeutic abortions.

Killer! Killer! In Congress, the issue cuts confusingly across ideological lines, making it difficult for many liberals from areas with strong Catholic enclaves to vote for abortion. Whatever his own feelings, any legislator in a swing district hesitates to arouse the anger of such an uncompromising group as the antiabortionists. Their attack can be so personal that New Jersey Congressman Andy Maguire was actually chased through his office building by lobbyists screaming "Killer! Killer!" He nevertheless maintained his pro-abortion stand. It takes courage for a Congresswoman like Maryland's Barbara Mikulski, whose Baltimore area is heavily Catholic, to fight the right-to-lifers as resolutely as she has. "I am a professionally trained social worker," she explains. "I know what the coat-hanger abortion is all about."

Last year Republican Congressman Henry J. Hyde of suburban Chicago introduced an amendment to the HEW appropriations bill for the current fiscal year that denied funds for abortions not necessary to save the life of the mother. To the surprise of the overconfident pro-abortion forces, it passed both chambers. The restriction failed to go into effect only because its opponents secured a court injunction against the measure in New York while its constitutionality was being tested. In view of last week's decision, the Supreme Court could now lift that injunction. If reinstated, this ban on abortion payments would expire at the end of September, when the fiscal year ends.

The odds now favor the success of a new effort in Congress to place a similar restriction on next year's HEW appropriations. By a vote of 201 to 155, the House two weeks ago approved another Hyde amendment that would even ban abortions deemed necessary to save a mother's life. This week the Senate will start debating the measure. Even many antiabortionists will join in trying to restore Medicaid for therapeutic abortions. But pro-abortionists seriously doubt that they will be able to persuade their colleagues to fund all abortions for needy women. Massachusetts Senator Ed Brooke, fighting hard to preserve full funding, is incensed at the legislators' mood. "It is really inconceivable that in 1977 the Congress would take this step backward." he protests. "This is nothing but a means test saying who's allowed to have an abortion."

Gaining momentum, the antiabortionists do not conceal the fact that their real aim is to make all elective abortions illegal again. "I would certainly like to prevent, if I could legally, anybody having an abortion -- a rich woman, a middle-class woman, or a poor woman," Hyde, a father of four, frankly told the House. The right-to-lifers are even hoping to call a constitutional convention that would adopt an amendment restricting abortions, although there are differences of opinion about how strong to make the measure.

However the fight in Washington turns out, the struggle is likely to continue at state and local levels. Even if federal funds are shut off at their source, the states could theoretically carry on with tax money of their own. It is highly doubtful, however, that many could do so. Since federal funds now cover up to 90% of abortion costs, the state's burden would be heavy.

If the abortion defenders somehow rally to keep the federal funds flowing, their opponents are well prepared to persuade state legislatures to get the abortion programs killed at the lower level. Beyond the 15 states in which they have already succeeded,* the right-to-lifers appear to be on the verge of pushing through other bans in Massachusetts, Illinois, Michigan and Wisconsin. In heavily Catholic Massachusetts, the pro-abortion forces frankly admit they see little chance of checking such a ban and are hoping they can persuade Democratic Governor Michael Dukakis to take the hazardous political step of vetoing such a bill.

Anti-abortion sentiment is so strong in Illinois that the legislature has approved a bill requiring unmarried women under the age of 18 to get their parents' consent before having an abortion, even though the Supreme Court has already declared unconstitutional such a limitation on the mother's freedom of choice. The strong opposition of Michigan Governor William G. Milliken is the main obstacle to passage of a ban on public funding of abortions in his state. While he has not promised to veto such a measure, he has warned that it could produce "a system of back-alley abortions--and that would be wrong, morally wrong."

Pro-abortion leaders had been lulled by the 1973 court decision and polls snowing that more than 60% of Americans favor permitting abortions in the first three months of pregnancy. Yet as the battle now centers on the narrower question of whether public money should support abortions, that majority could fade.

The pro-abortionists hope to win over some legislators to their cause by arguing their case on purely practical grounds: it may cost the government only $200 to fund an abortion, but childbirth care for a needy woman may run to $1,000, and welfare payments for the baby could add another $1,000 in the first year alone.

But perhaps the strongest point the pro-abortionists can make is that cutting off government funds will not stop abortions for needy women: they will have them anyway--somehow, somewhere. "It's outrageous, it's crazy," contends Joyce Yaeger of Planned Parenthood in New York. She points out that the $200 fee for an abortion performed in a hospital "is a lot of bread when you're poor. But you can always get $25 to $50 for the knitting-needle crowd of abortionists.'"

Making Liars. A California public-health official predicts that if government funds are cut off, more welfare mothers will die by going to cut-rate quacks for their abortions. Says she: "I'll send a copy of the first death certificate to Justice Burger."

If their counterattacks on the funding curbs fail, the pro-abortionists expect to try to expand the definitions of what constitutes a therapeutic abortion. They hope that the court will support their contention that a mother's mental as well as physical health can be severely affected by an unwanted childbirth. At the least, they assume, sympathetic doctors will sign papers claiming that the mother's health might be endangered. "We'll just have to educate poor women to do what wealthy women always have done," says Fran Avallone of New Jersey's National Abortion Rights Action League. "The court will make poor women lie, physicians lie and psychiatrists lie."

Legalities and theology aside, the prevalence of unwanted children--and the lengths to which women may go to prevent such births--presents a social problem that legislators, as the court suggests, should face squarely. Whether abortion is an acceptable alternative is a difficult question to resolve but one that should be decided by rational debate, not by which noisy side poses the more immediate threat to a legislator's political survival.

* Connecticut, Idaho, Indiana, Louisiana, Missouri, New Hampshire, New Jersey, New York, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Utah, West Virginia

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