No Place to Hide
RIGHTS come in one bundle. Free speech - liberty to speak up for justice - cannot be separated from free exercise of religion - worshiping, or not worshiping, by one's light. Conscience is conscience. Rights have corollaries. A right of assembly, to determine with whom one gathers, implies a right of privacy. Unreasonable search of property cannot be separated from similar search of one's person.
If a right exists to elect a medical procedure, such as an abortion, it should follow that one has a right to decline medical procedures. Would the opposite also be true: If society as a group can deny a medical procedure to an individual, can it also impose one?
Are Americans' rights coming unbundled?
The Supreme Court's opinion on abortion last week, Webster v. Reproductive Health Services, posted this question, ending as it did a session in which other basic rights came under some revision. Many Americans fear that with Webster the nation has entered a period when fundamental rights generally could be held in abeyance by actors of the state - as in the McCarthy era, when political views, speech, the right to work in fields like theater, came under broad attack.
Webster gives cause for vigilance, but the short answer is no, rights are not in general retreat, or at least not yet.
At this stage in American experience, civil rights groups, including abortion activists, can fend for themselves in the public arena. This is not the 1960s, or 1973 when the court in Roe v. Wade decriminalized abortion. In Webster the court did not rescind a woman's option to elect an abortion in the first months of a pregnancy. Unless there is a change in the court's composition, this principle will stand.
The original decision likely has more supporters among legislators and executives than has appeared to be the case. Since '73 it has cost politicians little to oppose abortion; they could rail against the Supreme Court, which had taken the issue from state legislative hands.
Webster raised three issues, none revolutionary. First, again, the court did not erase the fundamentals of Roe. Second, it said that states can ban abortions by public hospitals and public employees. This is the other side of the public funding of abortions, which the court had previously disallowed at the federal level.
And in testing a fetus for viability, the court had already said it must protect viable life. At question is the window of weeks in which a doctor must make an evaluation.
Deeply troubling: Chief Justice Rehnquist, in his majority opinion, expressed unhappiness with trimester divisions and implied room for more state restrictions. This invited abortion factions to take the offensive. As one constitutional scholar put it: The court had no business indulging in ``state regulatory mumbo jumbo.''
Most regrettable: Access to abortion for middle-class women will remain largely unobstructed, but access for the poor is less certain. This is not a consequence of abortion views alone; it reflects America's version of the welfare state - the greater tolerance than Europe's for letting the poor bear burdens. Still, Webster's restrictions on public funding means poor more than middle-class women will be thrown back to pre-Roe v. Wade conditions.
Another consideration: Responsibility in relationships implies responsibility for the consequences of relationships.
But whatever the politicians' views, after Webster there is no place to hide.
In Illinois, a Catholic candidate for governor who had long opposed abortion has suddenly reversed himself. So has a leading New Jersey candidate for governor. Massachusetts voters strongly prefer a pro-choice candidate for governor, a poll shows. Politicians like Gov. Mario Cuomo of New York are reaffirming their pro-choice views. Democrats worry women voters will abandon them for liberal Republicans who are pro choice. Elsewhere, anti-abortion legislators are active: A Louisiana proposal would jail state medical workers involved in abortions.
The tumult is hardly welcome. But at least politicians are addressing a more profound issue than flag burning - which, notably, the court decided in favor of individual freedom.