THERE ARE hundreds of cases involving some aspect of abortion pending in courts around the country. Some of them test state and local regulations, like requirements that parents be notified before an abortion is performed on a minor, for example. Others continue to challenge the Roe ruling in its entirety. The two dissenters in that case, Chief Justice Rehnquist and Justice White, are still on the court. Both of the current Reagan appointees, Justices O'Connor and Scalia, give every indication that they would also vote to reverse. A Justice Bork could provide the crucial fifth vote. What, then, would happen if the ruling were overturned?
We think it would be very bad news and that it should not happen -- that this is a legitimate concern about the nomination of Judge Bork. But the country would certainly not simply return, as some would have us believe, to the era of coat hanger, back alley abortions. The question would go back to the state legislatures. This is not a happy prospect for pro-choice forces, of course, because there would be difficult battles in many states. But much has changed since Roe v. Wade was decided.
In the five years before the 1973 ruling, 18 states had already made abortion legal. But public opinion was far behind. A University of Michigan poll taken two months before the decision was announced showed that 58 percent of Americans opposed abortion. Today, according to the National Abortion Rights Action League, 67 percent believe that a decision to have an abortion should be left to the woman and her physician. Since 1978, anti-abortion forces have lost 21 of the 22 ballot measures on the subject that they initiated. In the 1986 elections, four more pro-choice advocates were elected to the Senate and five to the House. Every incumbent challenged by an anti-abortion candidate was reelected, and every anti-abortion referendum on local ballots, including statewide votes in Massachusetts, Rhode Island, Oregon and Arkansas, was defeated.
Almost every state repealed laws against abortion after the Supreme Court decision. In three, Illinois, Idaho and South Dakota, statutes were subsequently passed that would go into effect if Roe v. Wade were overturned. In the 47 other states and in the District of Columbia, anti-abortion forces would bear the burden of moving forward and convincing legislatures and governors that new anti-abortion laws should be enacted.
But even if the prospect is not nearly so bleak or dramatic as many of Judge Bork's opponents are claiming, it is not a good one either. This newspaper hailed the 1973 ruling, and we continue to believe strongly that abortion should not be a crime. To reopen the debate in dozens of state legislatures would prolong and exacerbate a conflict that is on the threshold of resolution. The relevant question for his hearing is this: What does Judge Bork have to say about overturning settled law in areas where tremendous social and political change has already occurred