Choice in the balance 

There was more cause for concern than there was for celebration at this year's annual Planned Parenthood of Greater Orlando event on May 20 at the downtown Sonesta Hotel. Although most of the participants mingling around the second-floor reception were in lockstep on the issue of abortion, the cacophonous political wrangling happening outside the catered comfort of the private party echoed a bleaker reality.

A recent spate of legislative bricks being thrown at the controversial Roe v. Wade decision, including Florida's last-minute anti-abortion amendments to its otherwise innocuous healthcare bill, HB 1143, are leaving their intended marks on the 1973 court ruling. The amendments perniciously attack the issue through red-herring circuits of mandatory ultrasounds for first trimester abortion-seekers and floor arguments based on "fetal pain." Newly independent Florida Gov. Charlie Crist has been hinting at the possibility of vetoing HB 1143 — ostensibly for his own political gain — but, having just received the bill from slow-acting Florida Republicans on June 7, he only has until June 22 to make his decision. Meanwhile, a recent Miami Herald report shows anti-abortion activists out-campaigning pro-choice advocates with more than 20,000 letters, calls and e-mails to Crist in support of the bill, compared to 13,000 urging a veto. The bill stands to take effect on July 1.

What does it all mean for the future of Roe? Pulitzer Prize-winner Linda Greenhouse, who covered the Supreme Court for the New York Times from 1978 to 2008 (she continues to contribute to the paper), told the assembled crowd that she was "somewhat discouraged" by the progression of current events. Planned Parenthood enlisted Greenhouse, an outspoken advocate for women's health issues, to speak at the event in advance of her just-released book Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling, co-authored with Yale law professor Reva Siegel. We sat down with Greenhouse before the event to discuss the ongoing abortion battle and where it stands in light of shifting public opinion and current fluctuations in the Supreme Court. "We get the court we deserve," she says.

Orlando Weekly: Your book comes at an interesting time. There's a contentious debate on the horizon surrounding a new Supreme Court nominee; numerous states — including Florida — are carving out laws that challenge a woman's right to choose; and last year, for the first time ever, a Gallup poll showed that public opinion had crossed the 50 percent line against abortion. Is that sway one of the reasons you decided to write Before Roe v. Wade?

Linda Greenhouse: Well, the impetus for the book was really our sense — I speak in the plural because I have a co-author, Reva Siegel — our sense that the decade or so before Roe was really being lost to history because we looked at that period through the lens of growth, and those of us old enough to remember it think we know what happened and those of us too young to remember don't have a clue! So, it's really a historical correction.

What we set out to do was collect documents, primary-source documents, that would show — you know, in writing, you show, don't tell — what people were actually saying and doing about abortion before the issue ever got to the Court and before anyone imagined that it was an issue that would be resolved by a court. When it first got on the screen as a public health issue prepared by doctors, it was regarded as an issue of public policy, not of constitutional law. The way the framing of the issue moved it from the public health sphere and that kind of feminist policy sphere into constitutional law talk was not really inevitable, and it takes some kind of unpacking to understand that. But obviously there are resonances there with what is happening today, and the ultrasound issue is really an interesting one because you have to say, "Well, what is this all about?" I mean, certainly a woman seeking to terminate a pregnancy knows she's pregnant and knows that there is a fetus in her uterus. This is not like a big surprise to anybody who goes to see a doctor to terminate a pregnancy. So, what more does she need to know? It's obvious that these laws are not for the sake of informing women — they're for the sake of demeaning women — and they're completely phony and completely ill-intended.

What was interesting about the recent Florida House debate on the ultrasound bill was that no matter how they packaged it, no matter how they wanted to say that it was completely informational, no matter how it was written — when you give politicians five minutes on the floor, and they've got that bone to pick, they're going to pontificate, and they did.

Five minutes is a long time to talk when you don't have anything really good to say. Try talking for five minutes — talk into the mirror for five minutes and you'll be amazed at the garbage that comes out of your mouth.

It seems there is a real need to re-examine exactly what the foundations are of the Roe decision and why it is an important decision to uphold. I mean, the dilution that has happened in the past 30 years is certainly traceable. You can see where it's become a political issue.

I'll tell you one interesting tidbit we learned in doing research. You know the phrase "abortion on-demand"? It doesn't sound very nice — it's sort of a putdown of the abortion rights, making abortion sound very demanding and self-indulging. I'd always thought that it was a phrase that was invented by the anti-side, but that's not true. "Abortion on-demand" was the slogan of the feminists in the late 1960s who marched under placards that said "Free 24-hour Childcare" and "Free Abortion On-Demand." What was that about? I'll tell you, and it resonates with the ultrasound. In the late 1960s, some states began passing so-called reformed abortion statutes under a model that had been put forward by the American Law Institute. It was a model known as the "therapeutic model" or the "indications model." If a woman could show a group of doctors that she qualified to have an abortion because of various medical indications or problems with the fetus or problems with her health and so on, she would have to go to a committee of doctors to make the case and then be permitted to terminate the pregnancy. "Abortion on-demand" simply meant that women shouldn't have to justify themselves to a committee of doctors. In Georgia, for instance, a woman would have to get permission from five separate doctors before she could have an abortion, and that was the companion case to Roe, Doe v. Bolton. "Abortion on-demand" meant, "We want to go to a doctor and have a medical service." That's how it started, but then it got captured by the other side, including President Nixon, who, in about 1971 as he was ramping up his 1972 re-election campaign, had been advised by Patrick Buchanan and Kevin Phillips, his two political advisors, that he could profitably use the abortion issue to peel away urban, ethnic, Catholic voters who had belonged to the Democrats but maybe were getable on the abortion issue. Richard Nixon really didn't care very much about abortion, but this sounded like a good strategy to him.

Around this time, it came to light that the Pentagon had adopted a policy under which servicewomen could get abortions at any military hospital in the country, no matter what state. This was before Roe, so even in states where it was not legal, they could get an abortion at a military hospital. This became an issue and Nixon repealed the policy and said, "I don't believe in ‘abortion on-demand,'" and that changed the valence of that slogan. Now it sounds kind of ugly, kind of libertine — I'm waking up this morning and demanding an abortion. But when I hear about the ultrasound, it's the same kind of thing, the same kind of belittling, demeaning of the ability of a woman to make a sound judgment about what she wants to do with her pregnancy. The old therapeutic model was not intended as the ultrasound thing is, not to discourage abortion, but to reform the old criminal laws and to enable abortion. It was like a first step, but we've gotten beyond that, and now these people want to take us back there.

What is it about Roe — besides the obvious controversy — that makes it more vulnerable than other Supreme Court decisions?

Well, I think the reasoning is pretty clear. It's that, ever since Ronald Reagan ran for president in 1980 on a party platform that called for the appointment of judges who would overturn Roe v. Wade, and that was in the Republican Party's platform for the first time in 1980, Republican presidents have tried to put people on the court they thought would do that. We now have, I believe, four members of the Court who, if there were a fifth vote, would overturn Roe — that's Chief Justice `John` Roberts, Justice `Samuel` Alito, Justice `Antonin` Scalia and Justice `Clarence` Thomas. They don't have Justice `Anthony` Kennedy. They don't have five votes. I think if they did, that would be the result.

What stands out about your coverage of the Supreme Court is the discussion of the dynamics of the actual people who are involved. Reading your op-ed on `solicitor general and Supreme Court nominee Elena` Kagan recently, wherein she was once quoted as saying that "This is all a charade," and that you're curious — doubtful, even — whether she'd be able to live up to what she'd written in 1996 given the pressure. Is it your impression that it has become too political with these people who are involved?

There are a lot of ways to get into that. I think there is a fine line between trying to ascertain what a nominee thinks about an important issue, and trying to extract a promise from that nominee as to how they would vote. We don't want the latter, and we would like the former. You know, it's hard to draw lines, and I think you have to look at the nominee and the nomination holistically and say, "What do we understand about what this president wants and what do we understand about how this nominee has comported herself or himself on a range of issues?" and we have to do the extrapolation ourselves. I know Elena Kagan a little bit — I don't know her well, so I don't presume to know what's in her heart or mind at all — but, knowing what I know about her, I have no concerns as a citizen that she would be an anti-choice vote on the Court, whereas I think it was pretty clear at the time of the nomination of John Roberts and Sam Alito that, you know, where they were coming from.

In your previous writing, you've charted the evolution of the court. How an individual justice can initially vote one way, but after years on the court and various case experiences, can rule in a completely different manner.

Right. When I had this conversation with Justice `Stephen` Breyer the other day, who didn't like my article on Kagan, and he said, "You know, I just disagree with you because, when you're asked to say what you think before you've gone on the Court and really been presented with the issue in concrete terms as a real case, you don't necessarily know what you think." And it's certainly true of Justice `John Paul` Stevens' career, because his early votes on abortion were — I mean, he wasn't there for Roe v. Wade but his votes on the cases that came up quite soon after that about public funding, chills ran down Harry Blackmun's spine when he considered that Stevens was his new colleague. But, you know, Stevens just watched the passing scene and came to understand what was going on.

With all the political noise of the moment, there's a palpable sense that legislative politics are creeping up on the judicial branch. Is the Supreme Court what it used to be? Should we be worried right now?

Well, it's hard to generalize. I wouldn't sit here and say that everything on the Court is bad. ... Just this last week, Justice Breyer wrote a very important opinion on congressional power, on extended civil consignments for sex offenders — but those were the facts of the case, not that the case was about that — it was "Does Congress have the authority to carry out, to make executive its enumerated powers beyond the text of the Constitution?" and it was actually a very important decision about federal authorities that I think is going to help decide the Court's reaction to the healthcare mandate.

There is kind of a longitudinal survey that the social scientists take of all the institutions of the government, and the Court is always the highest because people need it to be, maybe? Because we have such a low regard for Congress that we need something to hang onto, so they maybe romanticize the Court? I don't know. I know many people that were sorely disappointed after the 2000 election case, after Bush v. Gore — they thought the Court would just crater in terms of public opinion, and it didn't, even though obviously half the voters didn't think it was the right outcome. Life went on.

Do you think that the lessons or the things that you found in the culture leading up to Roe are reflected in the present? Is history repeating itself?

Yeah, people are just kind of — they've forgotten. When we finished the manuscript, we showed it to some students at Yale Law School — they're just students, you know — and one of Reva's, my co-author's, one of her best students read it and said, "Do you mean that, in the 1960s, abortion was illegal in every state in the country?" We hadn't said that explicitly in the book because we had assumed that background knowledge and then we realized that we needed to spell it out for this generation. You know, were the Court to overturn Roe it wouldn't make abortion illegal throughout the land, and there are some states today where it is very difficult, possibly very inconvenient, for women to get an abortion. It would be a patchwork, and some people say, focus public attention and get people thinking "what if?" again. I don't know, because I don't think that's actually about to happen.

What would it take to send the issue back to the Supreme Court? Would there have to be conflicts between lower courts that would challenge previous decisions made?

The Court doesn't have to wait for a conflict. It can take up one of these ultrasound laws, which would be challenged as an undue burden on a woman's access to abortion — the standard of Planned Parenthood v. Casey — and the Court could say, a la Citizens United `v. Federal Election Commission`, the campaign case where they went beyond the question presented and overturned a bunch of precedents, that not only is this not an undue burden — we're just seeking information; we are the information society; there's nothing wrong with this; it's not an undue burden — but by the way, we reject this whole undue-burden analysis because we have decided that Roe v. Wade is no longer a good law. I could see that happening, but it would take more votes than they currently have.

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