Copyright 2000 Globe Newspaper Company
The Boston
Globe
July 4, 2000, Tuesday ,THIRD EDITION
SECTION: OP-ED; Pg. A11
LENGTH: 758 words
HEADLINE:
THOMAS OLIPHANT;
ABORTION POLITICS
BYLINE: By
Thomas Oliphant, Globe Staff
BODY:
WASHINGTON
The legal losers on abortion rights understood the implications
perfectly. It's the politicians on the right who have been slower to get the
message, but from George W. Bush on down they're coming around.
From now
on, the issue is not the politically created concept of "partial birth"
abortion. It's abortion itself, which both raises the stakes and
changes the politics. As Justice Antonin Scalia noted in
verbally violent dissent, the Supreme Court's bare majority that has upheld the
foundation of abortion rights, Roe v. Wade, has precluded meaningful legislation
to attack the rights piecemeal.
Scalia was explicit: "The possibility of
limiting abortion by legislative means . . . has been rendered impossible."
The other passionate right-to-lifer on the Supreme Court, Clarence
Thomas, was similarly noteworthy for his non-mincing of words: "We are told that
(31) states are prohibited from banning one rarely used form of abortion . . . "
Conservative politicians have tried to ignore these unassailable (by
logic and legal analysis) observations, but their movement is already divided
about pressing on with pointless legislative gestures after having wasted five
years on the sideshow of Thomas's "rarely used" but politically useful
procedure, while roughly a million abortions were being performed for every one
of those years.
After all, if one believes that "human" life begins at
the instant of conception and that ending it medically is homicide, the "unborn
child" is just as "dead" in the deity's eyes, no matter its fetal age or the
procedure used to "kill" it.
Bush is trying mightily to ignore this
reality. That is why he talks of banning "partial birth abortion," never of
junking Roe and going after abortion rights themselves. His tacit deal with the
right-to-life movement that forms much of his party's modern base has been to
ignore the basic issue in his campaign (and thus avoid mobilizing the prochoice
majority) while offering a clue to his real intentions by making anti-Roe Scalia
and Thomas his models for Supreme Court appointments.
Like Bush, the
GOP's congressional right-to-life guru, Representative Henry Hyde of Illinois,
hews to a belief that it is possible to construct a ban on one abortion
procedure that is constitutional.
Two big problems, flowing from the
candor of Justices Scalia and Thomas. The first is substantive: to wit, the
prevailing view among right-to-life scholars and most state attorneys general
that such a narrow ban would be meaningless to the very limited extent as was
enforceable.
The second is that such a "ban" would be signed into
irrelevant law by President Clinton, with the support of Al Gore.
People
forget that the so-called model statute that right-to-lifers came up with for
their partial birth crusade was designed not to fit within Roe's mandates but to
flout them. That is why all the state laws and the congressional measure
President Clinton has twice vetoed explicitly rejected attempts to tailor them
to Roe. That is why they intentionally blur the distinction between the second
and third trimester, avoid singling out dilation and extraction, and reject most
health exceptions.
That is also why the Center for Reproductive Law and
Policy, in some magnificent lawyering, targeted the 21 states with the most
explicitly anti-Roe laws for court challenges, while representing the gutsy
doctor who took on the Nebraska statute.
This has set the stage for the
altered state of abortion politics, featuring a wounded and angry right-to-life
movement, but also a clearly threatened right-to-choose, now hanging by a
Supreme Court thread.
For the Republicans, Bush is now under real
pressure to ditch any prochoice running mate, above all Governor Tom Ridge of
Pennsylvania. He is also under pressure to slap down all attempts to alter the
GOP platform and to speak up more for the cause. At stake is the intensity of
his base.
For the Democrats, Al Gore's choices for vice president are
less affected, with the sole exception of Senator Evan Bayh of Indiana, who
backs the partial birth ban. In addition, the Nebraska decision destroys Ralph
Nader's argument that there is no consequential difference between the two major
party nominees.
Abortion rights have had their profile raised. There is
now one nominee who favors them and one who opposes them, and it's clear each is
in position to do something about it as president. It's equally clear that this
will only matter in the election to the extent Gore makes it matter.
LOAD-DATE: July 5, 2000 
