Countdown on Roe gets under way Clear-cut ruling sought from justices


WASHINGTON -- At 90 seconds before 10 o'clock this morning, what may be the final countdown on Roe vs. Wade starts ticking.

That is the precise moment that nine Supreme Court justices will step ceremoniously through three sets of heavy red drapes and sit at the bench to hear the latest abortion case.

At some time before the one-hour hearing in front of about 400 spectators is over, a lawyer may directly ask the justices to overrule the Roe decision -- the basic abortion ruling announced 19 years and 91 days ago today.

Already, a good many of the bright green legal briefs filed in the case by abortion foes suggest exactly that, so it will be on the justices' minds. For example, the document filed by 41 members of Congress suggests: "Roe is constitutional error of the most radical variety, and the traditions of this court call for such error to be dispatched without ambiguity or equivocation."

The Bush administration's dark gray brief asks for that, too, in much less dramatic language: "Roe vs. Wade was wrongly decided and should be overruled."

If no lawyer repeats that suggestion orally in the hearing today, it is highly probable that the author of the Roe opinion -- Justice Harry A. Blackmun -- will ask at least once if that is the actual goal being sought. Justice Blackmun regularly asks that during abortion hearings.

Within 10 weeks, the court is to rule on the case and to indicate whether it is going to cast Roe aside -- completely, or in major part -- orleave it as is, for now.

Most legal experts who are speculating on the outcome tend to agree with Joanne L. Hustead, a lawyer with the Women's Legal Defense Fund, who has predicted: "The court is very unlikely ever to say it is going to overrule Roe, but, after this, there may not be anything left."

Translated, that would mean that the justices would uphold all parts of the Pennsylvania laws at issue and would do so in such a way that states would understand clearly that they may go far to outlaw abortion without worrying about the Supreme Court's reaction.

However the justices decide, there does not seem to be a political expert around who doubts that the court's ruling will become a central factor in this year's election campaign.

In fact, in Pennsylvania, abortion is already a key issue in the Republican primary, which will occur just six days after the court hearing. U.S. Sen. Arlen Specter, a firm supporter of abortion rights, is being challenged by the author of the state anti-abortion laws under review now by the Supreme Court -- state Rep. Stephen F. Freind of suburban Philadelphia.

Pennsylvanians say that abortion may also become an issue in the re-election campaign of state Attorney General Ernest D. Preate Jr. He has taken a prominent role in the abortion case and will be arguing the state's side today.

In Maryland, the abortion issue will echo across the state through Election Day, Nov. 3, when voters decide whether to guarantee abortion rights in the state by referendum. If that measure is approved, abortions would be allowed in Maryland without government interference up to the point that a fetus could live outside a woman's body -- whether or not Roe vs. Wade is overruled.

The justices' decision will come shortly before both political parties' presidential conventions this summer, and the abortion question is destined to be debated feverishly at each. Pennsylvania's strongly anti-abortion governor, Robert P. Casey, is urging the Democrats to give up their party's support of abortion rights. And a group called Republicans for Choice will be trying to get an anti-abortion plank removed from the GOP platform.

President Bush, the certain GOP nominee, strongly opposes abortion; Arkansas Gov. Bill Clinton, the likely Democratic nominee, is very much in favor of abortion rights.

Combatants on both sides of the political and legal battle over abortion want the court to issue a clear-cut ruling.

Abortion-rights groups appear to be in general agreement that they would rather Roe be gone entirely than have the issue left dangling and uncertain. It will be much easier, they say, to organize politically around an overruling of Roe than around something short of that but still anti-abortion in its practical effect.

Kate Michelman, executive director of the National Abortion Rights Action League and a principal spokeswoman for her side, has been saying for months that "the days of Roe vs. Wade are numbered."

Last week, she said: "Roe will almost certainly be eviscerated by summer."

James Bopp Jr., a Terre Haute, Ind., lawyer and a leading advocate on the other side, thinks that there is a "real good chance" that a definite majority of the court will agree on a new, single standard for judging abortion laws.

He predicts that the standard will be very permissive, allowing any law that is "rational." That, in fact, is precisely what he urged the court to do in two separate anti-Roe briefs he filed for different groups in the Pennsylvania case.

When the crowd assembles for today's hearing -- about 100 members of the public, 76 lawyers-as-spectators, some 100 VIPs and 119 members of the press -- much of their attention will be focused on the ends of the bench, where the two most junior justices sit.

On the left end, as the audience sees it, will be Justice David H. Souter. On the right will be Justice Clarence Thomas.

Neither has voted directly on abortion rights as a judge, although Justice Souter did cast a decisive majority vote in May in a 5-4 ruling allowing the federal government to forbid doctors and nurses at government-funded clinics from talking to poor women about abortion as a treatment option.

Only one justice, Antonin Scalia, has urged the court publicly to overrule Roe vs. Wade, but three others are in favor of at least a broad relaxation of the Roe ruling to permit more restrictions. It is not known whether those three -- Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Byron R. White -- would vote to strike down Roe altogether if they could be part of a clear-cut majority ready to go that far.

To get a majority to do that, anti-abortion advocates would appear to need at least one added vote from among Justices Souter, Thomas and Sandra Day O'Connor. Justice O'Connor has strongly criticized the Roe ruling, but many observers think that she would not be willing to be the one to make a slim five-justice majority to do away with abortion rights.

Two others, Justices Blackmun and John Paul Stevens, have made it clear that they want to keep the Roe decision as is.

There is much speculation in the legal community that the court could uphold all parts of the Pennsylvania laws without saying anything at all about retaining or overruling Roe vs. Wade.

Some of those doing the speculating suggest that the court wants toshy away from deciding Roe's ultimate fate at this time and, thus, will try to write a fairly narrow ruling.

But abortion-rights advocates are impatient for a direct ruling on Roe and so are some of the anti-abortion forces.

In taking the case on to the Supreme Court, abortion-rights lawyers sought to make the fate of Roe the sole question at issue.

A group of more than 600 state legislators -- arguing that abortion should be sent back for the legislatures to handle, an action that would mean the end of Roe -- also has suggested that Roe is the real issue at stake now.

Indeed, that group argued that the court cannot decide the constitutionality of the two anti-abortion laws in Pennsylvania without first deciding whether abortion continues to be a "fundamental right" under the Constitution, as Roe said it was.

Today's hearing may give some hints, at least, about how far the court is willing to go.

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