WASHINGTON -- In the wake of the Supreme Court's refusa to hear the Guam case, the operative question now is whether abortion rights will continue to be an important issue in national -- politics -- or one largely fought out in state capitals. Many politicians in Congress would not be unhappy to see the latter.
The message in the court's ruling is that even after 12 years of Ronald Reagan and George Bush there simply isn't a majority on the court for overturning the 1973 Roe v. Wade decision that legalized abortion. Only three justices -- Chief Justice William Rehnquist and Justices Byron White and Antonin Scalia -- were willing to hear the case, one fewer than required.
That lineup, coupled with the election of a supporter of abortion rights, Bill Clinton, to the presidency, suggests that there is little, if any, prospect of a court willing to overturn Roe in the foreseeable future. The Democratic president-elect already has made it clear he intends to appoint justices who share his view on abortion rights.
There is, of course, always the possibility of a surprise with any Supreme Court. When Clarence Thomas was confirmed last year, the conventional wisdom held that there were at least five and possibly six or seven sure votes to outlaw abortion. But when the court ruled in the Pennsylvania case last June, there were only four -- Thomas and the three who voted to accept the Guam case -- thus reaffirming an axiom in Washington that the behavior on the bench of people chosen for the Supreme Court can never be predicted with full confidence.
The decision in the Guam case doesn't suggest, by any means, that the abortion rights issue will vanish from American politics. What it does mean is that much of the action now will be centered in state legislatures as opponents of abortion rights try to write restrictions that will meet the standard set by the court in June -- that state limits cannot impose an "undue burden" on a woman seeking an abortion.
Meanwhile, the court's current makeup, coupled with the prospect of at least one and possibly two or three Clinton appointees in the next four years, can be expected to take some steam out of the attempt to pass the so-called Freedom of Choice Act designed to, in effect, write into law the Roe decision, if only because there are many members of both houses who would like to duck the question entirely.
Abortion rights advocates can be expected to continue pressing for the legislation. Kate Michelman, executive director of the National Abortion Rights Action League (NARAL), for example, argues that the Guam decision "does nothing to lessen the need, the imperative for a federal law" guaranteeing abortion rights just as the 1965 Voting Rights Act was essential to guarantee blacks the opportunity to vote.
Michelman concedes there are some in Congress who would like to see the issue go away. But she argues that there is actually "much more momentum" for the Freedom of Choice Act among "people who won on the issue" in the election -- specifically new senators and House members who stressed their support for abortion rights in their campaigns and now will want to deliver on it in office before they face their constituents again in their re-election campaigns.
The role of the abortion rights issue in national politics has been difficult to define all along. On the one hand, some national opinion polls have shown very few voters inclined to cast their ballots solely on the basis of abortion rights and among those a slight edge for opponents of abortion rights. But other studies have found the issue an important factor in mobilizing pro-choice women behind a candidate and in encouraging the defections to Democrats among Republican women, particularly in the suburbs.
The issue clearly has caused problems within both parties. The Democratic Party considers support for abortion rights a litmus test for its national ticket and is overwhelmingly pro-choice in orientation. Republicans, including President Bush, have taken a rigid line against abortion in almost all circumstances.
But there are significant minorities in both parties who disagree with the party dogma -- minorities large enough so that no one can cast a vote on any abortion question without paying some political price.