STILL STANDING.(Roe v. Wade, abortion rights case, Supreme Court justice appointments)

The Supreme Court decided Roe v. Wade on January 22, 1973, the day that Lyndon B. Johnson died, and obituaries of the former President, who had left the White House only four years earlier, led the news the next morning. But in the subsequent three decades Roe has dominated public debate about the Court; only the Dred Scott case, which, in 1857, established that the Constitution regarded slaves as property, not as people, and helped precipitate the Civil War, and Brown v. Board of Education, which, in 1954, began the process of public-school integration, have had a comparable impact. Through eight Presidential elections and the nominations of thirteen Justices (some of which failed, at least in part, because of the nominees' views on Roe), no other controversies involving the Constitution--about such issues as civil rights or the relationship between church and state--have generated as much discussion as the holding, in Roe, that women have a right under the Constitution to terminate their pregnancies.

Of the three Republican Presidents since 1980, two have called for Roe's reversal--George W. Bush has said that he favors restrictions on abortion law but has stopped short of demanding that Roe be overturned--and opposition to the decision has been a central organizing principle of the religious right. Among liberals, support for Roe has often been grudging. Many proponents of legal abortion have criticized the reasoning behind the opinion, and some have asserted that their cause would have been better served by taking their fight to state legislatures rather than to the Supreme Court. Some Justices, Sandra Day O'Connor prominent among them, have argued that the medical science on which Roe rests is outmoded. "These Supreme Court nominations always come down to the same thing," Orrin Hatch, the Utah Republican and longtime member of the Senate Judiciary Committee, told me. "It's one case: Roe, Roe, Roe."

Interest in the case has recently become particularly intense. On November 30th, for the first time in five years, the Supreme Court will hear arguments in an abortion-rights case, a challenge to part of a New Hampshire law that requires minors seeking abortions to notify their parents. Then, on January 9th, the Judiciary Committee will begin hearings on the nomination of Samuel A. Alito, Jr., a judge on the United States Court of Appeals for the Third Circuit, to replace O'Connor, who is retiring from the Supreme Court after twenty-four years. O'Connor's central role in determining the abortion jurisprudence of the Court since Roe, and Alito's controversial record in abortion cases as an appeals-court judge, make this transition an especially momentous one. In a 1985 application for a promotion in President Reagan's Justice Department, Alito wrote that he was "particularly proud" to have participated in writing a brief to the Supreme Court arguing that "the Constitution does not protect a right to an abortion."

Yet Roe has withstood attacks remarkably well. Only four of the seventeen Justices who have served since 1973 have voted to overturn it, though the Court has had many opportunities to do so, and public-opinion polls show strong, if not overwhelming, support for the decision. Roe v. Wade may be a rickety landmark, but it has proved to be resilient.

The events leading up to Roe were haphazard. In the summer of 1969, a carnival worker named Norma McCorvey went to see a doctor in Dallas because she suspected that she was pregnant. She was twenty-two years old, and this was her third pregnancy, the product of a brief affair with a man whom she had met at a carnival. McCorvey had given up custody of her first two children and, distraught at the prospect of bearing a third child, decided that she wanted an abortion. Abortion was illegal in Texas, as it was in most states, except to save the life of the mother. As David J. Garrow recounts in his 1994 book "Liberty and Sexuality," "Another woman in the waiting room, upon hearing Norma's story, told her that she ought to tell the doctor that she had been raped, for that news might well make the difference." Thus misinformed, the doctor referred McCorvey to a local lawyer who knew a lawyer who was considering a challenge to Texas's abortion law. In March, 1970, McCorvey's lawyer filed a suit against the state, giving her client the pseudonym Jane Roe and naming as the defendant the district attorney of Dallas County, Henry Wade.

At the time, feminists and their allies were encouraging state legislatures to liberalize their abortion laws. Lawsuits such as Roe v. Wade represented an alternative strategy for achieving that goal; victories in court ultimately made battles in state capitols moot, and some abortion-rights supporters argue that political triumphs might have proved to be more enduring than legal ones. Ruth Bader Ginsburg, who was then a prominent ...