As the political conflict over abortion in America has moved from the courts to the elected branches of government, many people have expected that the states, rather than the federal government, would become the key to preserving abortion rights. But while the states undoubtedly will be critical battlegrounds, supporters of reproductive choice do have another option. They can press Congress to enact national legislation guaranteeing the right to abortion. If, as seems likely, the Supreme Court continues to erode and perhaps ultimately reverses Roe v. Wade, federal legislation may be the only way to establish nationwide the reproductive rights that the Court no longer finds protected by the Constitution itself.
The logic of national legislation is clear. Leaving abortion policy entirely to the states will produce a patchwork quilt of laws, permissive in states like California and New York, harshly restrictive in others with politically powerful pro-life movements. Recently, for example, Pennsylvania, Utah, and Guam enacted statutes that erect substantial barriers to access to abortion.
And as Walter Dellinger has pointed out in these pages ("Should We Compromise on Abortion?" TAP, Summer 1990), even some less draconian regulations on access to abortion pose serious obstacles to many women. Middle- and upper-income women living in the restrictive states may be able to afford travel to take advantage of more permissive laws elsewhere. But poor and otherwise disadvantaged women in restrictive states will be driven to back alleys or forced to accept the lack of alternatives. Only a federal statute can guarantee all women a minimum level of protection.
Yet supporters of reproductive rights must face political realities. They are unlikely to persuade Congress to pass an ideal statute. If they cannot bring themselves to support federal abortion legislation that limits choice more than they would prefer, they risk losing the political battle before it begins. Their objective should be to secure a federal statute that provides a floor of minimum protections for choice. If individual states pass more permissive laws, women in those states could still take advantage of them.
Pro-choice groups are understandably reluctant to accept limitations on access to abortion that only a few years ago seemed unthinkable. Endorsing a federal law with such limits could appear to lend legitimacy to pro-life efforts to impose those same limits in state laws. As a result, a statute intended to create a "floor" could, at least indirectly, help create a "ceiling" on abortion rights.
The task facing advocates of choice, therefore, is complicated and painful. They must decide upon a political strategy that can command a majority in Congress in favor of the broadest freedom of choice possible. They must also be wary, however, of endorsing a minimal federal law that provides little gain to poor women while handicapping efforts to secure wider protections of choice in the states.
A pure, uncompromising approach will not succeed politically; whether we like it or not, compromise goes hand in hand with successful legislative strategies. As a practical matter, moreover, it is impossible to set out in advance exactly what compromises pro-choice groups should be willing to settle for. For obvious tactical reasons, proponents of strong legislation never discuss "acceptable" compromises openly, and they even hesitate to discuss them privately. Many a previously unthinkable concession has been made at the eleventh hour when it spelled the difference between a victory in hand and an uncertain outcome in the next Congress.
Nonetheless, those concerned about achieving the best protections of choice, particularly in a world without Roe, should be thinking through what they can realistically expect to achieve with national legislation and what issues matter most to women who have to face the prospect of an unwanted pregnancy. In that effort to fashion an approach sensitive to both strategic and moral concerns, it is critical to understand what Congress can, and cannot, be expected to do.
The Basis of Congressional Action
Any national legislation on abortion will have to meet several tests. The legislation must be framed to make it as likely as possible that the Supreme Court will hold it to be constitutional. It must command enough public support to win a majority in Congress. And it must be capable of generating enough support to override a presidential veto -- or, perhaps, to help elect a new president.
To fight for a national law on abortion, only to see it overturned by the Supreme Court as unconstitutional, would obviously be disastrous. It should be possible, however, to meet the test of constitutionality, even with the Court's likely shifts in membership in the 1990s. To be sure, a constitutional amendment guaranteeing abortion rights would minimize uncertainty, but the history of amendment battles, from the Equal Rights Amendment to school prayer to flag-burning, shows that amendments pass only when there is a very broad consensus. On abortion, there isn't one. In framing a national bill to protect abortion rights, therefore, advocates of choice will have to look to the powers given to Congress by the Constitution.
Congress has at least three sources of authority to enact such legislation. First of all, it could bar the states from interfering in access to abortion under its authority to enforce the guarantees of individual liberty that stem from the due process clause of the Fourteenth Amendment. This approach is the most intuitively appealing and many legal scholars endorse it. The Supreme Court, however, has never clearly stated how far Congress can go in protecting a personal freedom that the Constitution itself, in the Court's interpretation, does not provide.
Second, the spending power, which enables Congress to put conditions on the receipt of federal funds for health care and other purposes, is probably broad enough to sustain a statute limiting federal funds for states with restrictive abortion practices. This approach, however, is the most politically heavy-handed; it would allow a determined state to thumb its nose at federal funds altogether and potentially end up harming poor people and others in that state who benefit from federal programs.
Finally, the Commerce Clause provides a third basis for a uniform federal law, since inconsistent state laws will drive women to travel across state lines in search of abortion alternatives. This approach is the soundest and safest for ensuring constitutionality. To make the constitutional underpinnings of legislation as solid as possible, Congress should rely on the Fourteenth Amendment and Commerce Clause together.
Just as the Constitution provides Congress sufficient authority to act on abortion, public opinion provides Congress sufficient mandate. Most Americans endorse the right of women to choose an abortion. In response to a July 1990 Time/CNN poll, 59 percent of Americans said they would oppose a Supreme Court nominee who would vote to overturn Roe v. Wade. Attitudes toward abortion vary, however, according to the circumstances. A survey conducted by the National Opinion Research Center (NORC) between February and April 1990, asking whether a pregnant woman should be able to obtain an abortion, found that 78 percent approved if there was a strong chance of birth defects; 89 percent approved if the woman's life was in danger; 43 percent if she was married and did not want more children; 81 percent if her pregnancy resulted from rape; 43 percent if she was unmarried and did not want to marry the man; 42 percent if she wanted an abortion for any reason. A September 1989 New York Times national poll found similar variations.
But, perhaps most important of all, the Times survey found that 69 percent of those surveyed agreed with the statement, "Even in cases where I might think abortion is the wrong thing to do, I don't think the government has any business preventing a woman from having an abortion." Most respondents (69 percent) also said that if the state imposes restrictions, a woman's doctor rather than a government official or judge should decide whether the restricted abortions are permissible. The public is clearly wary of bureaucrats or courts deciding whether any particular abortion is justified.
Does Congress Support Choice?
Whether congressional opinion is more or less pro-choice than public opinion on abortion is unclear. Because of Roe, Congress has not been forced to address the fundamentals of abortion policy for almost two decades. Since 1977 there have been 58 votes in the House and 74 votes in the Senate on abortion, but most of these votes concerned limitations on the use of funds. Despite the large number of votes, we do not know where most members of Congress stand on many basic issues regarding abortion. And they may not know, either.
Most likely, a majority in Congress would now endorse the basic right to an abortion. The issue, however, has not come straightforwardly to a vote since 1983, when the Senate voted on a constitutional amendment proposed by Orrin Hatch, Republican of Utah, that would have voided the Roe decision. That amendment read simply, "A right to abortion is not secured by this Constitution." At the time, the Senate had a substantial Republican majority and was much more conservative than it is today, yet Hatch's amendment did not pass. Fifty senators voted in favor, 49 against, far short of the two-thirds vote needed for a constitutional amendment. (Senator Helms, an ardent pro-life supporter, voted "present," explaining that he was torn between overturning Roe and allowing states to legalize abortion, which the amendment would have allowed them to do.) The closest equivalent to such a vote in the House probably occurred in 1984, when the House defeated, by a vote of 219 to 186, an amendment to a civil rights act that would have declared a fetus to be a "person," entitled to full legal protection.
Since the Webster decision, there has been a widely noted swing toward pro-choice sentiment among elected political leaders. In the 1990 elections, candidates running for governor and Congress from both parties shifted toward pro-choice positions. In several key votes, the House has shown movement in the same direction. President Bush's decision to nominate Justice David Souter, a judge with unknown views on abortion, was clearly an effort to avoid a bruising political battle over the issue. Souter's nomination stands in dramatic contrast to President Reagan's decision to nominate Robert Bork, whose opposition to a constitutional right to privacy was applauded by right-to-life groups.
Neither the House nor the Senate has recently brought the basic issue of abortion to a vote, but the last Congress did consider proposals to guarantee certain minimum protections of choice for all women. The bills before Congress generally codified Roe by providing for the right to choose abortion until the fetus becomes viable. They also prohibited states from imposing limitations on abortion that are not medically necessary. The measures left unclear, however, whether states would still be able to impose certain limitations, such as requirements of parental notification when the woman seeking an abortion is a minor. As a result, some representatives who favored such limits were unwilling to endorse the bills, which were co-sponsored by about one fourth of the members of each house -- a solid, though not overwhelming, showing.
Major legislation often takes more than one Congress to win final passage. Nonetheless, the experience of the last Congress suggests that those working for national legislation to guarantee abortion rights will need more than additional time. They will need to consider the compromises necessary to win a congressional majority.
Where Compromise Will Come
Parental notification provides perhaps the clearest example of an issue on which advocates of choice may be obliged to make unpalatable compromises. A requirement of parental notification will discourage some young women from seeking an abortion by confronting them with hostile parents and a judicial system that may seem terrifying to a teenager. Nonetheless, federal legislation is unlikely to pass unless it allows states to adopt notification requirements.
Not all states will adopt such requirements. In November 1990, contrary to what national polls led observers to expect, voters in Oregon rejected a referendum proposal to require parental notification. In contrast, a May 1990 Time/CNN poll showed that 69 percent of adults nationally favor laws requiring a teenager to get her parents' consent before having an abortion.
It is difficult to imagine the Congress going on record supporting a strict consent requirement, which would force some minors to have babies against their will. Even the current Court would likely hold such a provision to be unconstitutional. There appears to be strong public sentiment, however, for some parental involvement in the abortion decision.
The Senate has voted twice recently on parental notification amendments. By a vote of 54 to 43, the Senate refused to table (indirectly approved) a proposal in September 1990 to require family planning clinics to notify one parent 48 hours before a minor has an abortion. The proposal made no provision for a "judicial by-pass," that is, allowing the courts to grant an exception in extreme cases. A similar amendment was offered later dealing only with federally funded abortions when the mother's life is in danger or in cases of rape or incest. This latter amendment was adopted after the Senate failed to table it by a 48 to 48 vote. Both of these votes came up under unique circumstances, but the overall pattern indicates that a majority in the Senate supports a parental notification policy. While these piecemeal votes on abortion policy may be different in the context of a comprehensive legislative package and a high degree of public attention, they show clear congressional approval for some parental involvement in the abortion decision, in line with the public's attitude as registered in national surveys.
Abortion and the Public Purse
In yet another area, advocates of choice are almost certainly going to be disappointed by Congress. The prospects for general congressional funding of abortions are minimal. Since the late 1970s, Congress has barred the use of federal funds for abortions, except where the mother's life is in danger. Many members now appear to support a woman's right of choice but oppose requiring the public to pay for the exercise of the right. Congress has become more willing to allow federal funds, however, when pregnancies result from rape or incest. In a dramatic move to a more pro-choice position, the House voted 216 to 206 in October 1989 to allow Medicaid funds to be used for abortions in rape and incest pregnancies. The Senate has approved similar provisions by narrow majorities.
In another break with the past, the House voted in 1989 to allow the District of Columbia to use its own funds for at least some abortions. The Senate has also voted in recent years to allow the District to use its own funds for abortions. In the past, the House has regularly barred the District from paying for any abortion, even if a woman had no income and her life was in danger. It is hard to imagine a harsher restriction, and the House's position can be explained only as mixture of hostility to public funding of abortions, political hypocrisy (since the members' own constituents are unaffected), and perhaps downright racism.
President Bush vetoed the 1989 appropriations measure permitting the use of federal funds to pay for abortions in cases of rape or incest and threatened to veto the District of Columbia appropriations bill over the more permissive provision. In the end, the White House got its way. While there seems to be a narrow majority in Congress for expanding the use of federal funds in cases of rape or incest, the majority is not large enough to override a veto. Similarly, Congress is closely divided on whether to restrict the District of Columbia from using its own funds on abortions. Congress, however, almost certainly would be less likely to restrict spending on abortion by the states themselves than by the District of Columbia.
The right to choose means nothing if women have no access to a medical provider. The Webster decision may effectively permit states to eliminate access to abortion services for poor women since it allows a state to bar the use of public facilities. Thus, a federal policy guaranteeing that women have access to a licensed provider may be as important for some women as the right of choice itself.
The New York Times poll showed that 35 percent of the public favors prohibiting public employees or public hospitals from performing abortions. (This response suggests some support for requiring public hospitals to provide access, but no doubt attitudes turn in part on the particular circumstances of the pregnancy.) Congress appears more sympathetic to the notion of guaranteeing access than to the proposition that the public should pay for abortions. For example, in 1988 the Defense Department announced a new policy that bars a servicewoman from using a military medical facility to obtain an abortion even if she pays for it herself. Previously, women in the military and dependents were allowed such access. A proposal in the Senate in 1990 would have reversed the policy, but the measure was withdrawn after a 58 to 41 vote to cut off debate failed (two votes short of the number required to end a filibuster by opponents of guaranteeing access). Despite the defeat of the proposal, there was clearly a solid majority in the Senate in favor of the principle of access. However, a vote on the same amendment in the House in October 1990 failed by a vote of 200 to 216.
The Realm of Compromise
In framing legislation and thinking about strategy, supporters of choice need to understand where they enjoy the greatest strength and where they suffer from the greatest weakness. They have a strong base in public opinion and probably enjoy majority support in Congress on the basic issue of a right to abortion. But the contours of that right are another matter. It is clear that public sentiment more strongly favors a woman's right of choice the earlier in the pregnancy it is exercised and the more compelling the circumstances. Almost all late-term abortions are the result of serious health problems for the mother or fetal abnormalities. The polls suggest broad support for ensuring choice until late in the pregnancy under these extreme circumstances. On the other hand, when the circumstances seem less compelling, the public approves of an earlier deadline for legal abortions. A factor that may make such limitations somewhat more tolerable is that the public appears willing to allow doctors broad discretion in certifying exceptions to the deadline.
The political battle for federal funding of abortions seems lost, except where the mother's life is endangered or in cases of rape or incest. On the other hand, states must be allowed the option of using their own funds for abortion services for poor women. In addition, states should not be able to prevent the only medical facility in a community from providing abortion services or to impose medically unnecessary requirements as an indirect method of limiting choice. Congress has paid limited attention to these issues, but the few votes it has cast show some recognition of the importance of access in making any right of choice meaningful.
Understandably, pro-choice advocates want to ensure choice throughout pregnancy under the broadest possible circumstances. Yet, there is a strong case for making access to early-term, safe, and inexpensive abortion services the highest priority in enacting a federal statute. These are the cases where the burden on low-income women of restrictive state policies would fall most heavily.
Giving a parent a right to know about a daughter's abortion will discourage some young women from seeking legal abortions and drive them to illegal, dangerous alternatives. Yet the support for parental involvement is a hard political reality. Pro-choice proponents should attempt to ensure that the required notice is not burdensome and that there is a humane and effective judicial by-pass provision.
Few advocates of choice would have accepted any limitations on access to abortion services as long as the Court held firm on Roe. Yet hard choices will have to be made if a federal statute is to become a reality. The opponents of choice will exploit the public's ambivalence about free choice under some circumstances. There are already proposals, for example, to bar late-term abortions, abortions for the purpose of sex selection, and abortions without the consent of the father. One candidate for state office in 1990 declared herself to be "pro-choice" in cases of rape and incest. Pro-choice proponents must attempt to gauge public sentiment and respond to it in a politically effective way, not simply with moral outrage.
The Politics of a Veto
The prospect of a presidential veto complicates the decision about whether to press for a federal statute. For even if a strong statute could command solid majorities in both houses, it would be unlikely to win enough support in Congress to override a veto. The difficulty of overriding a veto was obvious during the last Congress, most dramatically in the failure to pass the Civil Rights Act of 1990. The Democrats' slender gains in the last election have not altered that reality.
Yet proponents of choice have little reason to think that waiting will bring better chances of passage. It is a tribute to the haplessness of the Democrats in presidential elections that they are rated as likely losers in 1992 despite war and recession. What about 1996? Delaying a political response for so long can be the equivalent of giving up. Six or eight years without federal protection of choice will harden the status quo. The time to demand that a freedom be restored is when it has just been lost and outrage is most vocal and passionate.
On balance, more is to be gained than lost from pressing for a legislative victory in the face of a veto. A veto will help to show that the President is out of touch with the majority of Americans and to set the stage for a continuing political battle. No single event can more clearly define the issue for a presidential election than for the President himself, rather than the Congress or the Supreme Court, to deny women the right of reproductive choice.
The decade of the 1990s is going to be a difficult one for supporters of choice, if only because the guarantees of Roe v. Wade are certain to suffer some erosion. Nevertheless, the ground for hope is that the majority of the public is dearly in favor of some right of choice. Only a small fraction of voters support the extreme position of the pro-life activist movement. The great task of supporters of choice is to participate wisely in the majoritarian political process. While some victories will be won in pro-choice states, the real battle is for the rights of poor women in states with harshly restrictive laws. The only way to preserve their rights is to build a coalition in support of a federal statute that can win a majority in Congress. Passing such a law during the term of an anti-choice president makes the task particularly challenging. Yet we have no alternative but to try.