Carnival Atmosphere Over a Serious Topic
A Who's Who of abortion debate and soggy spectators gather - a letter from Washington
THE soggy spring air did little to dampen the carnival atmosphere outside the Supreme Court Wednesday following arguments in the case of the season - Planned Parenthood v. Casey.
The case, which challenges Pennsylvania's restrictive abortion law, brought out all the usual suspects, arranged in two tiers before the high court's majestic edifice: first, a modest crowd of foot soldiers in both the pro-choice and anti-abortion movements, waving signs, chanting for television cameras, shouting at anyone with whom they could make eye contact.
Then, up the stairs and roped off on a plaza for the press's benefit, swarmed a veritable Who's Who in the abortion debate, from National Organization for Women President Patricia Ireland, to Gov. Robert Casey of Pennsylvania, the anti-abortion Democrat made famous by the case, to Sarah Weddington, the lawyer who represented Norma McCorvey - a.k.a. Jane Roe - in Roe v. Wade, the 1973 case that guaranteed the right to abortion.
Law professors put their spin on what had just happened inside. National Right to Life Committee officials pressed info-packets into the hands of journalists. Pennsylvania Attorney General Ernest Preate, who had just pleaded his state's case before the court, grinned for a court-backdropped photo-op, an arm around each of his twin daughters.
Moments earlier, inside the court, many of the same people sat solemnly in the marbled main hall for the strictly timed one-hour hearing. Of the 125 "general admission" spectators allowed in, most had arrived the day before to be sure to get a seat - and wound up spending the night in the court's basement to escape the rain. The press pack, totaling 119, tied the court's record, set in 1989 for the last big abortion case, Webster v. Reproductive Health Services.
Perhaps the only unexpected aspect of the whole event was the argument itself, which, taken on its own, appeared to be won by the underdog, Planned Parenthood. American Civil Liberties Union attorney Kathryn Kolbert, who represented the plaintiff, spoke a full seven minutes before Justice Sandra Day O'Connor asked her to turn to the specifics of the case.
Ms. Kolbert's strategy was to focus on the broader issue of abortion as a fundamental right and to warn of the consequences of an overturned Roe v. Wade. To uphold the Pennsylvania law, Kolbert argued, would be tantamount to overturning Roe, because it would eliminate the fundamental nature of the right to abortion. The law limits abortion but does not ban it.
Mr. Preate, on the other hand, underwent extensive grilling on the law - in particular the provision requiring a wife to notify her husband in most cases before an abortion (the only provision, incidentally, that the lower court overturned) - and appeared to be backed into a corner by the justices. Justice O'Connor called spousal notification a "curious provision" in that it does not require notification when the father of the child is not the woman's husband.
But given the makeup of the court, made increasingly conservative by Presidents Reagan and Bush, abortion-rights advocates still expect to lose Casey. They ascribe the lack of challenge to Kolbert's arguments to disinterest on the part of the justices.
"Frankly," says Ms. Weddington, the Roe lawyer, "you can't win a case on oral arguments. You can lose it, but you can't win."
She recalls the day in 1973 when the court heard Roe v. Wade: "In Roe, the feeling was charged; it was totally different." Two minutes into arguments, she said, the justices began firing back with questions.
Wednesday's event seemed to have an air of inevitability about it. With only two of the nine justices known to support abortion rights, advocates of a woman's right to choose have all but given up on the judicial route and are concentrating on politics.