THE nomination of Ruth Bader Ginsburg to the Supreme Court may have a slight dampening effect on Congress's ability to complete legislation that would guarantee a woman's right to abortion.
As an abortion-rights advocate, Judge Ginsburg would add a vote to the high court's 5-4 majority supporting the 1973 Roe v. Wade ruling establishing abortion as a fundamental right. Therefore, federal legislation aimed at codifying Roe is not needed, argue members who would rather not vote on the sticky issue.
The focus on the legislation, called the Freedom of Choice Act (FOCA), is in the House of Representatives, where it survived a battle in the Judiciary Committee and awaits floor action. On Tuesday, members who advocate the bill started "whipping," or lobbying, fellow members on FOCA.
"There was one member who said to me: `Well, I was for Roe v. Wade freedom of choice, as long as it was in jeopardy, but since it's not in jeopardy I don't see any reason to bring it up,' which kind of stunned me," says Rep. Pat Schroeder (D) of Colorado.
The irony is that abortion-rights advocates are wary about Ginsburg's commitment to the Roe v. Wade ruling. She has taken issue with the argument that led the court to Roe, preferring that it was based on equality rather than privacy rights.
Abortion-rights advocates were cautiously positive about Ginsburg's nomination Monday, saying they hoped her confirmation hearings will flesh out her stand on laws restricting abortion, such as 24-hour waiting periods. In a recent speech at New York University, she appeared to praise the Supreme Court's 1992 ruling Planned Parenthood v. Casey, which allowed a series of regulations on abortion, for "renew[ing] dialogue" between states and the court. It is those same restrictions that FOCA advocates fought
hard to keep out of the bill when it was in the House Judiciary Committee.
Abortion-rights supporters hoped whoever President Clinton selected would join the two sitting justices who favor a "strict scrutiny" standard in assessing abortion-restriction laws. They fear Ginsburg will position herself more with the three justices in the middle, who favor a lesser standard.
On FOCA, supporters are fighting to send the bill to the House floor with as limited a "rule" as possible - that is, one restricting debate and the number of amendments that can be proposed. FOCA's foes are hoping to kill it with amendments, such as waiting periods and restrictions on who can perform abortions. They know FOCA supporters would rather have no FOCA than a restriction-laden FOCA.
The "Ginsburg excuse" is just the latest in a series of ways some members of Congress - those who, when pushed, tend to vote pro-choice but are not adamantly so - are trying to avoid dealing with FOCA. Abortion foes will use any pro-FOCA votes against members in the next election in an effort to paint them as extremists who favor abortion at any time in a pregnancy for even frivolous reasons.
"It is silly for anyone to think Ginsburg's nomination to the court is somehow going to resolve the need to protect women on the federal level," says Kate Michelman, president of the National Abortion Rights Action League. "The court has gone sharply against this right over the last 12 years. Only two support Roe, and it will take years before we can restore the highest level of protection. So they must pass FOCA."
Another abortion-rights advocate speaks with frustration about the "excuse du jour" that lawmakers toss out in an effort to avoid a FOCA vote. Last year, Republicans said it would embarrass President Bush during his campaign. Earlier this year, Democrats said they needed to focus their strength on Clinton's economic package. Then they said they wanted to save their clout for health care, where the abortion issue will also be tricky.
FOCA advocates already feel they've conceded enough, allowing additions to the bill that state that unwilling individuals or private hospitals may refuse to perform abortions as a matter of conscience and that states may enact legislation requiring parental involvement in a minor's abortion.