Abortion as state issue: Pro-life and pro-choice forces prepare for General Assembly vote

For today, at least, the law of abortion stands undisturbed. For today, the women of this nation still retain liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.
      – U.S. Supreme Court Justice Harry Blackmun in his dissent in the case of Webster v. Reproductive Health Services.

But the goal of constitutional adjudication is surely not to remove inexorably "politically divisive" issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true to the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.
      – U.S. Supreme Court Cheif Justice William Rehnquist writing for the majority in the Webster case.

[A] plurality of this court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that sometime down the line the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22,1973.
      – Justice Blackmun predicting the course of future legislation in his Webster dissent.

Abortion will be in the legislative ambit of the Illinois General Assembly when lawmakers return to Springfield this month. Although abortion opponents would like to return to the limitations that existed before 1973, they say that they will not try to provoke a new test case this fall. Instead pro-life forces will seek to conform Illinois laws to the latest U.S. Supreme Court ruling. Whether or not the wind is chill depends on your point of view. Nevertheless, many expect hot times when the Illinois legislature becomes one of the first to weigh government's role in determining the conflicting rights of mothers and unborn children in the new era.

The new era follows the case of Webster v. Reproductive Health Services handed down by the U.S. Supreme Court on July 3, two days after Illinois lawmakers adjourned their regular session. By a five to four majority, the nation's highest court upheld a Missouri law that:

• Requires that fetuses believed to be 20 or more weeks of gestational age be tested for viability (ability to survive outside the womb).
• Prohibits use of public funds, public employees and public facilities for performing abortions or counseling women to have abortions not necessary to save the mother's life.
• States in its preamble that life begins at conception and that fetuses at every stage of development should enjoy the rights of other residents of the state.

The Supreme Court struggled to reach its divided decision. The key provision was the one requiring the viability testing for fetuses believed to be 20 weeks of age, and justices wrote three concurrences and two dissents to that portion of the ruling. The doctors and abortion clinic operators who filed the suit challenging the constitutionality of the Missouri law had interpreted the statute to mean that various tests be performed before every abortion. They argued that one, amniocentesis, was dangerous to both the mother and the fetus.

Chief Justice William Rehnquist and Justices Byron White and Anthony Kennedy read the law to mean that it requires the physician to use only his professional skill to decide what tests are necessary and ruled the Missouri law constitutional because it is designed to prevent abortion of viable fetuses. In essence, they say that Missouri is establishing a presumption of viability at 20 weeks that must be rebutted by the tests.

The three-justice plurality acknowledges a conflict with the trimester approach of Roe v. Wade (410 U.S. 113), the 1973 abortion case that had controlled the issue for 16 years. Under Roe, abortions in the first trimester (12 weeks of pregnancy) are the sole province of a woman and her doctor. In the second trimester the state is allowed to regulate how abortions were performed to preserve its interest in protecting the health of the mother. In the third trimester the state is allowed to regulate (including prohibiting) abortion, in the interest of protecting the

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life of the fetus. But three justices is two too few to overturn or modify Roe.

Justice Antonin Scalia said it was not necessary to determine whether the testing was consistent with Roe because Roe should be overruled. He minced few words. "It thus appears that the mansion of constitutionalized abortion-law, constructed overnight in Roe v. Wade, must be disassembled door-jamb by door-jamb, and never entirely brought down, no matter how wrong it may be." That is three votes to modify Roe v. Wade and one to overturn the case entirely.

But the Webster case would not be the one to bring down the landmark decision. Justice Sandra Day O'Connor said the Missouri law requires only those tests that a physician judged necessary and should be upheld. That is consistent with Roe v. Wade, she said. Not until a state law turns on the validity of Roe, should Roe be revisited, and then it should be carefully examined, O'Connor wrote.

Justices Harry Blackmun (author of the Roe decision), William Brennan and Thurgood Marshall dissented sharply. They charged that the plurality could have struck down the tests as irrational or upheld them as consistent with Roe in protecting viable fetuses. And they argued that the court should have decided the case on the question of whether citizens enjoy an "unenumerated right" to privacy and whether that right extends to childbearing. "I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court," Blackmun wrote.

Justice John Paul Stevens agreed with the Blackmun dissent. He went on to say that the preamble, with its definition of conception as the fertilization of the egg, also threatened certain forms of birth control including morning after pills and intrauterine devices that prevent implantation of the egg in the uterine wall. Stevens reasoned that only a religious and not a secular interest was involved in differentiating between birth control devices that prevent fertilization and those that prevent implantation of the egg. Stevens concluded that the preamble's declaration represented an unequivocal endorsement of a religious tenet, thereby violating the separation of church and state required by the first amendment.

The greatest impact on Illinois will be the portion of the ruling that affects viability testing. Illinois already defines conception as fertilization of the egg and prohibits Medicaid funding of abortions.

State lawmakers, anticipating the Supreme Court's ruling in Webster, had a bill similar to the Missouri law in conference committee, ready for passage had the Supreme Court's upholding of the Missouri statute come down before adjournment. H.B. 574 contained a requirement modeled on the Missouri law that viability testing be done of fetuses more than 20 weeks old, and that abortions of such viable fetuses take place only in hospitals with life support systems able to keep a viable baby alive. Slightly different versions of the measure, with the viability testing in each, got 72 votes in the House and 32 in the Senate, after twice falling short of the 30 votes needed for passage.

Those fighting H.B. 574 claimed that the measure would create a hardship downstate because there are only two hospitals that have the life support systems required under the bill and both refuse to perform abortions. The bill's opponents contended that when abortions are performed as late as 20 weeks into a pregnancy, it is often because of genetic abnormality in the fetus. The law would require those fetuses to be put on life support systems. Opponents quoted a Webster brief from the American Medical Association and the American College of Obstetricians and Gynecologists that medically the earliest point that a fetus could survive on its own is 24 to 26 weeks, four to six weeks after the deadline for testing required in H.B. 574.

For those who oppose abortion, the Webster case presents an opportunity to limit the number of abortions without running afoul of the Supreme Court's Roe ruling. Sen. Richard F. Kelly Jr. (D-39, Hazel Crest), Senate sponsor of H.B. 574, says the game plan for the pro-life forces is to pass some form of H.B. 574 to move Illinois to the new Webster standard. "It's not going to go beyond the Supreme Court ruling," Kelly says, even though he and others would like to see abortion restricted as it was before 1973.

Kelly predicts success based on passage of the measure in the spring session. But he does not expect approval by a wide margin, and he doubts that the votes will be there to override a gubernatorial veto. Kelly says a brouhaha is possible: "It's a very strong issue. It brings out strong personalities. The fall session's going to be a very active one. It'll be a battleground down there."

He believes that the pro-choice advocates will be no more active than the pro-life forces. And Kelly believes that the pro-choice tactics will be no more successful than were the tactics of those who sought passage of the Equal Rights Amendment. "There is some similarity in that game plan," he says.

Ralph Rivera, chairman of the Illinois Pro-Life Coalition and an anti-abortion activist since 1975, says the plan for this fall is to push legislation that reflects the Webster decision. "Our policy has been not to introduce something that we believe is unconstitutional," Rivera says. The specifics of what will go in the conference committee report were still being worked out in mid-September but would include viability testing and could pick up on the Webster ruling that a state can prohibit use of public funds for abortion counseling.

Rivera says that he expects to have a pro-life rally in Springfield during the first week of the veto session. He sees the possibility of confrontation with the other side but prefers that it be avoided. "That's not my style. I like to see the numbers. I like to see the letters. I don't like the screaming."

What happens beyond the veto session will depend on interpretations of what the U.S. Supreme Court seems to be saying. Rivera says his forces will try to figure out what they would have a chance of getting five votes for and what they can expect the court to uphold. "I think the court says to us, 'Test us, I think you'll like it.' "

For those who support the abortion rights conferred by Roe v. Wade in 1973, the Webster case has provided a new rallying cry. Pro-choice activists claim majority

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support among citizens for their position against restrictions on abortion and say that Webster has awakened their sleeping majority. And they claim to be confident that they can stop adoption of a Webster-clone in Illinois this fall.

Luellen Laurenti, lobbyist for the Illinois Chapter of the National Organization for Women (NOW), says she has crisscrossed Illinois talking about the Webster case. "Since the Webster decision there has just been an incredible outpouring of support. Our membership has increased 1,000 since Webster. We've seen a whole reinvigoration of NOW and the women's movement."

Laurenti acknowledges that the pro-choice supporters may have become complacent after the Roe decision in 1973. She says that NOW saw the threat to Roe coming with Reagan's appointees to the Supreme Court. And she says the networks that were organized to oppose Robert Bork's Supreme Court confirmation gave the pro-choice activists a head start in responding to Webster.

Their goal for this fall is to keep H.B. 574 tabled or to defeat it. They are writing letters and contacting lawmakers to remind them that they have pro-choice constituents. Their goal for the long term is to ensure that they do not lose legislatively what the Supreme Court decides not to protect judicially. "Not only are we going to be working hard in the veto session, we will be working hard in the election," Laurenti says.

Laurenti was in Springfield to push for ratification of the Equal Rights Amendment in 1982. She hopes this fall that there will not be confrontation between H.B. 574's proponents and opponents as there was over ERA. She says NOW's strategy is not to have large numbers of members in the Capitol. They have asked chapters to send two or three representatives from each legislative district so they can get in touch with specific lawmakers. Laurenti does not expect things to build to the end-of-session peak that they did when throngs of ERA supporters converged on the Capitol.

Illinois will be an early indicator of the post- Webster era for the National Abortion Rights Action League. Karen Mitchell, its Springfield lobbyist, says the emphasis is on grass roots mobilizing to hammer home to lawmakers the pro-choice makeup of their constituencies. Mitchell sees H.B. 574 as nothing but an excuse to further restrict access to abortion. She is cheered by the outpouring of support that her organization has seen since Webster. Mitchell says those contacting her office are enthusiastic and says it will be impossible to keep them away from the legislature this month. "We're hoping it doesn't get too crazy. We have no control over that, but we are not promoting that type of activity."

The American Civil Liberties Union is seeing a similar burst of interest sparked by Webster. Since Webster the ACLU has organized four new chapters in Illinois, largely around the abortion issue, according to Rob Schofield, the ACLU Springfield lobbyist. Schofield says that reports on initial efforts are positive and that direct mail and phone campaigns are turning up pro-choice support in some unexpected areas.

Schofield insists that the Missouri law and its Illinois clone are simply attempts to make abortions harder to obtain. He says that requiring viability testing at a time when it is meaningless medically is simply a ploy. And he fears the chill that will be put on physician-patient relations.

But Schofield is confident of victory. He believes that Webster will put new pressures on lawmakers who could previously vote against abortion, safe in the knowledge that the laws would be struck down as unconstitutional. As voters learn that legislators can now make these decisions, there will be more pressure on lawmakers to vote carefully, he says. And Schofield sees no advantage to lawmakers in making the decision. "There's no political gain that they could get out of it."

Both sides see some reluctance by lawmakers to tackle the controversial issue. The Pro-Life Coalition's Rivera says that he sees some efforts to protect incumbents who will face tough election challenges. "I see a lot of people nervous," he says.

Abortion is an issue that crosses party lines. Although Democrats tend to favor letting Roe stand, they are joined by some Republicans and opposed by some Democrats. Gary J. LaPaille, chief of staff for House Speaker Michael J. Madigan (D-30, Chicago), says abortion is an issue on which House Democrats are left to vote their consciences and their districts. Steve Brown, Madigan's press secretary, believes that it will be difficult for lawmakers to avoid a vote if pro-life forces continue to press the issue. Brown also wonders how dangerous a vote will be, given polling that indicates only 1 to 2 percent of voters will decide how to vote solely on the issue of abortion.

When the House and Senate passed separate versions of H.B. 574, the measure was put into conference committee. The committee never reported, and the bill sits tabled in the House. To move it the House Rules Committee must determine that it is of an emergency natures and proponents must line up 71 votes to take the bill from the table. (They got 72 votes for the bill when it passed the House on May 23.) After it is taken from the table and the conference committee has made whatever changes it wishes, to become law the bill will need 60 votes in the House, 30 votes in the Senate and the signature of the governor.

The pattern in Illinois has been legislative approval of abortion restrictions, a veto by Gov. James R. Thompson on constitutional grounds, an override by lawmakers and a successful federal court challenge. The notable exception to that scenario was the prohibition of Medicaid funding for abortions, which withstood judicial scrutiny. In the process Thompson has earned the wrath of those who would limit abortions. By giving him a law similar to the Missouri law upheld in Webster, proponents seek to preclude a veto on constitutional grounds. At the same time, supporters of abortion hope that Thompson, who is not seeking reelection and not facing the voters again in 1990, will continue his pro-choice positions. The governor himself has argued that labeling individuals "pro-choice" and "pro-life" is too simplistic. He has urged restraint and suggested that hearings be held to gauge the views of Illinoisans.

The fate of abortion regulation will be decided in the political arena. It is not an issue that will be decided on partisan lines. But it is an issue that could generate nonpartisan heat. Lawmakers will be wary that they do not get burned. □

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