OPPONENTS of abortion, barred by the Supreme Court from banning abortions altogether, have tried to use state and local laws to discourage them. Some of these efforts have been struck down by the Supreme Court, on the grounds that they were attempts to circumvent the court's decision and to prevent people from exercising what the court has declared are their constitutional rights. Next term, the Supreme Court will be considering other such laws, including one passed by the city council of Akron, Ohio, which has been opposed by the American Medical Association, the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics and the Nurses Association of the Obstetrical Colleges.
They object in particular to Akron's requirement that a doctor read certain statements to a woman before she can undergo an abortion -- statements that these professional organizations believe to be medically inaccurate. Their objections seem well founded. Such a requirement could well be seen as an attempt to discourage exercise of a constitutional right, as a federal appeals court already found.
There is another reason, however, to be uneasy about this case. It illustrates an increasing tendency in our society to decide contentious issues, on which reasonable citizens of good will take irreconcilable positions, in the courts rather than through the political process. The battle over Akron's ordinance was joined by representatives of national groups interested in the abortion issue, as if it were a test case by which the rest of the country would be bound. The measure was passed by a 7-6 vote in 1978 and allowed to become law without the mayor's signature; the mayor said that, although he thought it unconstitutional and could have vetoed it, he would let the courts decide the issue. That is the same sort of craven irresponsibility that Congress and other legislatures often practice when they pass measures of dubious constitutionality or statutes phrased in such Delphic language that their validity or their meaning must be determined by the courts.
Astonishingly, those who challenged Akron's ordinance did not return to the political arena. They had understandably sought injunctive relief against a criminal statute they considered unconstitutional. But it seems not to have occurred to them to try to reverse a 7-6 decision, either by persuading one council member to change his mind or by changing the composition of the council in one of the elections that has occurred since 1978. Instead, they pursued their test case, even though the political process is usually quicker and less expensive than the legal process.
The fact that much social change has been effected through the legal process -- most notably through the great series of lawsuits that helped to end legal segregation in the South -- sometimes blinds us to the fact that the political process can work, too. Those who are aggrieved by the Akron abortion ordinances, unlike blacks in the South in 1954, have access to the political process. Public officials who shirk their duty to oppose what they reasonably consider unconstitutional measures and advocates of positions who choose litigation over political activity must share responsibility with the courts for the fact that so many difficult political issues are settled by the least politically accountable of our branches of government.