Getting the Court Out of the Way : Only Congress’ constitutional authority can overcome ideological opposition to abortion

On April 5, many Americans who support abortion rights will rally in Washington for what is billed as a “March for Women’s Lives.” The route will not take them past the U.S. Supreme Court; the target of this demonstration will be the Capitol.

The march, sponsored by more than 400 organizations, symbolizes an important shift in the strategy of abortion-rights activists--away from the court, where the hard-line majority seems poised to overturn Roe vs. Wade, to Congress, where legislation is pending that would undo much of the harm that the court has already done--and may yet do.

If the court is truly “lost” on abortion, as many Americans believe, abortion-rights activists now plan to test the court’s commitment to its own rhetoric about judicial restraint and deference to legislative will by making Congress’ intent unmistakably clear. By so doing, this strategy goes, the court’s ideological opposition to abortion would have to give way to Congress’ constitutional authority.

Four bills we strongly support are pending: Two would permanently lift the Bush Administration’s odious “gag rule” on abortion counseling, upheld last term by the court. The Senate passed its version last summer; House passage is expected in coming weeks.

The proposed freedom of choice act is a more ambitious effort. Less than two full pages, the act states clearly and succinctly that “a state may not restrict the right of a woman to choose to terminate a pregnancy before fetal viability; or at any time, if such termination is necessary to protect the life or health of the woman.” The bill now has more than 120 co-sponsors in the House--including more than half of California’s congressional delegation--and in the Senate has the support of both California senators, Democrat Alan Cranston and Republican John Seymour. Hearings were held last week by a House judiciary subcommittee, where passage is expected. Senate hearings are scheduled for later this spring. Sponsors plan to have the bills ready for floor votes as soon as the Supreme Court acts.

In the meantime, 147 members of Congress took the unusual step last week of filing an amicus brief with the court, urging it to reaffirm, not abandon, the Roe decision.

President Bush promises to veto all of these bills. Congress must make sure that its intent on a woman’s right to an abortion is absolutely clear.