Supreme Court and the culture war -- March 28, 2013 column

By MARSHA MERCER

One January day in the mid-1970s, Supreme Court Justice Potter Stewart was riding in a car down Pennsylvania Avenue when he spotted a crowd marching up Capitol Hill toward the court.

Stewart, unaware it was the anniversary of the Roe v. Wade decision, asked what was happening. People were protesting against legalized abortion, Stewart was told.

 

“I don’t understand it,” the puzzled Stewart responded, shaking his head. “We’ve decided that.”

Longtime New York Times reporter Linda Greenhouse says the court’s chief deputy clerk, who was with Stewart that day, told her the story to illustrate how easy some court decisions seem at the time.

Stewart was one of five Republican-appointed justices who voted in the 7 to 2 majority to make abortion legal in 1973. When he retired in 1981, the decision still looked “rock solid,” Greenhouse wrote. Now, “not so much.”

The justices decided the abortion issue, but they didn’t settle it. The fight over abortion rights still rages, and, in a gigantic leap to the past, could be headed back to the courts.

North Dakota Gov. Jack Dalrymple on Tuesday signed the nation’s strictest abortion law, prohibiting nearly all abortions in the state. Dalrymple concedes the measure likely won’t survive a court challenge but insists it’s “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

North Dakota jumped over Arkansas, which for a couple of weeks had the title of strictest abortion law.   Last year, 19 states passed 43 provisions limiting abortion services, according to the Guttmacher Institute, a reproductive rights research group.

  

Could the Supreme Court unintentionally have set the stage for the 40-year war over abortion? None other than Justice Ruth Bader Ginsburg, a staunch advocate for women’s equality, has long believed that when the court stepped ahead of the legislative process, it ignited the protest movement.

States were heading toward abortion rights, but not fast enough for advocates of complete change. Only four states had repealed their anti-abortion laws while 13 had liberalized them when the court made legal abortion the law of the land.

The sweeping ruling was hailed as a breakthrough. But Ginsburg said in a lecture in 1992 that it brought on a backlash that hurt progress in women’s rights.

     

“Around the extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction,” she said then. 

America’s story has always been one of expanding personal rights, not reining them in. No one could have imagined in 1973 that four decades later states would be chipping away at a woman’s right to choose. 

Ginsburg suggested in the 1992 lecture that the anti-abortion movement might never have gathered steam had the court taken smaller steps. We’ll never know.  

Appointed to the high court by President Bill Clinton in 1993, Ginsburg celebrated her 80^th birthday March 15. She hasn’t changed her mind about Roe.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year.

Much has changed in society, thankfully, since 1973. The Supreme Court heard arguments Tuesday and Wednesday on two cases involving same-sex marriage. Nine states and the District of Columbia now allow gay marriage.

Seventeen state attorneys general, including those in Alabama and Virginia, filed a legal brief, citing fallout from Roe and Ginsburg’s comments to contend that the court should butt out and let the process work its will. That’s not fast enough for many Americans who want marriage equality to be the law of the land.

In the arguments, the justices seemed reluctant to wade into a case from California, where voters banned same-sex marriage with Proposition 8. Justices seemed far more likely to strike down the Defense of Marriage Act, a 1996 federal law that allows only heterosexual married couples to receive spousal benefits.

Ginsburg gave a glimpse of her distaste for DOMA’s discriminatory effects.

The law, she said, creates “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”

When the court rules, probably in June, we may find out whether Ginsburg thinks that same-sex marriage has reached the point where the court needs to step in.

And if, as she hopes, Ginsburg stays on the court as long as Louis Brandeis, who retired at 82, the court’s liberal leader could hear an abortion case.

©2013 Marsha Mercer. All rights reserved.

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