Court at the Crossroads

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O'Connor is a likely vote against abortion The staunchest defenders of the decision—Brennan, Marshall and Blackmun—are all at least 75 years old. "All of our guys are the old men," says Nanette Falkenberg, executive director of the National Abortion Rights Action League. The court, it would appear, is already primed for a switch; a single appointment might be all the shove that it needs. But even for a determinedly conservative court, reversing Roe would be a momentous step. Since so many women have relied on the decision, says Columbia's Blasi, to overturn it "would be Prohibition all over again."

Still, there are ways to trim back Roe without reversing it. Blackmun's majority opinion in Roe ruled that while women a right to "personal liber ty," the fetus has no rights its own until it can live outside the womb. The decision relied heavily on medical evidence that the fetus was not viable until about the seventh month of pregnancy, the third trimester. But recent advances in in fant care challenge that decade-old assumption. "It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future," Justice O'Connor wrote last year. "The court would not have to go against precedent," says Falkenberg. "It could simply say that the state had a compelling interest in protecting the fetus at an earlier stage." Some legal experts believe the court would prefer not to re-examine advances in medicine constantly and would decide instead that it should not be in the business of determining when life be gins. If that happens, the court could reverse Roe and leave it to state legislatures to decide whether to permit abortion.*

Religion. The court is "winding up to permit a lot more religion in public life," says Arizona State University College of Law Dean Paul Bender. Observes Virginia's Howard: "For 15 years, the court has been trying to water down the strict separation of church and state." During the past two terms, the court has sought in its opinions to "accommodate" religion in state-supported activities as long as the practice does not represent a "real danger of establishment of a state church." For this reason, in a decision widely regarded as a bellwether, the court earlier this year allowed Pawtucket, R.I., to use public funds to erect a nativity scene as part of a downtown Christmas display. The court has upheld laws that have a "secular purpose," like promoting education, but advance religion as a side effect. Many court watchers expect the Justices this term to uphold a "time-sharing" program in Grand Rapids that sends public-school teachers into parochial schools for remedial programs.

The hottest church-state issue turns on a landmark 1962 decision, Engel vs. Vitale, in which the Supreme Court prohibited organized prayer in public schools as a violation of the First Amendment ban on "establishing" a state religion. Since then, Fundamentalists have agitated for a constitutional amendment permitting school prayer, and many local schools have simply ignored the court ban. Now many experts believe the Justices will look for a compromise. They will have an opportunity this term when they consider the constitutionality of an Alabama law that