Nation Topics - Social Justice | The Nation

Although most Israelis, even those who consider themselves members of the left, are blaming Yasir Arafat for escalating the current violence, some are trying to voice a different position. They have organized a number of small protests calling for Israel's withdrawal from the West Bank and Gaza Strip and against the shooting of demonstrators.

In addition, about fifty Israeli scholars and community leaders--Jews and Arabs--have published a petition in Israel's daily Haaretz stating that war must and can be avoided. The petition was initiated by sociologist Baruch Kimmerling. Signers include Ruchama Marton, the founder of the Israeli Physicians for Human Rights; Dalia Kirstein, director of the Center for the Rights of the Individual; and Gila Svirsky, former director of the Israeli and Palestinian feminist group Bat Shalom. Also signing were literary figures David Grossman, Yitschak Laor, Yigal Shwartz and Orly Lubin; economist Arieh Arnon; and three Palestinian citizens of Israel who teach at Ben-Gurion University, Ismael Abu-Saad, Thabet Abu Rass and Ahmad Saadi. The petition demands:

§ An immediate and unilateral Israeli commitment to evacuating the provocative settlements and zones that are to be included in the Palestinian state--including those in the Gaza Strip, Hebron and the Jordan Valley.

§ That Israel accept Palestinian sovereignty over all Arab neighborhoods and mosques inside Jerusalem, while Israel will maintain sovereignty over the Western Wall. The city, within this framework, will be completely open to all residents.

§ That Israel declare a strong commitment to insuring equal rights in every area to all Palestinian and other citizens of the state of Israel, and that it stop shooting at demonstrators.

§ A release and exchange of all prisoners on all sides.

We believe that only the acceptance of this package and the immediate cessation of all violence by all populations on all sides can serve as the basis for rebuilding trust among Jews, Palestinians and the Arab world.

It took twelve years for the FDA to approve mifepristone--also known as
RU-486--and most of that time had less to do with medicine than with the
politics of abortion. Still, the late-September decision was a
tremendous victory for American women. In approving RU-486, the FDA
showed that science and good sense can still carry the day, even in an
election year.

The long delay may even backfire against the drug's opponents. In 1988,
when mifepristone was legalized in France, it was a medical novelty as
well as a political flashpoint. Today, it's been accepted in thirteen
countries, including most of Western Europe; it's been taken by more
than a half-million women and studied, it sometimes seems, by almost as
many researchers. By the end of the approval process, the important
medical professional organizations--the AMA, the American Medical
Women's Association, the American College of Obstetricians and
Gynecologists--had given mifepristone their blessing; impressive
percentages of Ob-Gyns and family practitioners said they would consider
prescribing it; thousands of US women had taken it in clinical trials
and given it high marks, with 97 percent in one study saying they would
recommend it to a friend. Against this background of information and
experience, the antichoicers' attempt to raise fears about the drug's
safety sounds desperate and insincere.

In a normal country, RU-486 would simply be another abortion method, its
use a matter of personal preference (in France it's the choice of 20
percent of women who have abortions, while in Britain only 6 percent opt
for it). But in the United States, where abortion clinics are besieged
by fanatics and providers wear bulletproof vests, mifepristone's main
significance lies in its potential to widen access to abortion,
especially in those 86 percent of US counties that possess no abortion
clinic, by making it private--doctors unable or unwilling to perform
surgical abortions could prescribe it, and women could take it at home.

It is unlikely, however, that Mifeprex, as the drug will be known when
it comes on the market, will prove to be the magic bullet that ends the
war on abortion by depriving antichoice activists of identifiable
targets. The nation has been retreating from Roe v. Wade for a
quarter-century, and a good portion of the patchwork of state and local
regulations intended to discourage surgical abortion will apply to
Mifeprex as well: parental notification and consent laws (thirty-two
states), waiting periods (nineteen states), biased counseling and
cumbersome reporting and zoning requirements. States in which
antichoicers control the legislatures will surely rush to encumber
Mifeprex with hassles, and small-town and rural physicians in particular
may find it hard to prescribe Mifeprex without alerting antichoice
activists. Doctors are a cautious bunch, and the anticipated flood of
new providers may turn out to be a trickle, at least at first. Abortion
rights activists should also brace themselves for a backlash from their
hard-core foes: Just after the FDA's decision was announced, a Catholic
priest crashed his car into an Illinois abortion clinic and hacked at
the building with an ax.

But in the long run, Mifeprex will make abortion more acceptable. In
poll after poll Americans have said that when it comes to terminating a
pregnancy, the earlier the better. Mifeprex, which has been approved for
the first forty-nine days after a woman's last menstrual period--when
the embryo's size varies from a pencil point to a grain of rice--may
well prove not to arouse the same kinds of anxieties and moral qualms as
surgical abortion. Then, too, Americans are used to taking pills. That,
of course, is what the antichoicers are afraid of.

Call it the Prague Fall: a season not only to test the democratic progress of Central Europe's most favored post-Communist nation but to find out whether a nonhierarchical, nonviolent movement of fair traders, environmentalists, debt-relief activists, socialist workers and revolutionaries can--by applying public pressure to the world's most powerful economic institutions--force real change. Prague proved, if nothing else, that the issues of corporate reform and increased social services have worldwide appeal. Red-sashed Catalonian Marxists marched alongside white-clad Italian Zapatista sympathizers. Nervous Czech environmentalists rubbed shoulders with black-hooded German anarchists. Activists from Greece and Turkey--yes, Greece and Turkey, together--commanded the front line of a march blockaded by police and kept it calm. This was not the globalization of multinationals, but in the words of Scott Codey, a US activist, "globalization of human rights, workers' rights and economic justice."

As Day One of the Initiative Against Economic Globalization in Prague began, all was quiet and orderly. Leaders of nonprofit organizations held thinly attended public discussions. Fourteen thousand dark-suited bankers and politicians yawned through World Bank and the International Monetary Fund meetings with titles like "Building the Bottom Line Through Corporate Citizenship" in a Stalin-era convention hall. Meanwhile, the police looked on benevolently--I saw one Czech lieutenant blithely pop a ball into the air with the inscription Liquidate the IMF.

By late morning, however, activists had begun a three-pronged assault on the heavily guarded Congress Center. One group of mostly anarchists and communists managed to snake its way through police barricades and get within yards of the bankers' meeting hall. It remains unclear how the violence escalated so quickly, but fifty Czech police were injured in a bombardment of sticks, stones and Molotov cocktails. By nightfall, after activists had smashed the windows of a McDonald's on Wenceslas Square, cops were again beaten back, this time by protesters wielding the policemen's own batons. The day ended in a cloud of tear gas, with thousands of World Bank delegates being shuttled in buses, searching for the four-star hotels not besieged by young radicals.

By Day Two, to no one's surprise, the Czech police had abandoned their restraint. I saw officers round up protesters for no apparent reason and cart them off to jail, where things got decidedly worse. Many of the 859 arrested were denied food, water and phone calls. And in numerous cases, they were severely beaten. "The jails here are a place of no control, a place of complete darkness," said Marek Vesely, an observer with Citizens Legal Watch, a Czech nonprofit. "A lot of people who didn't have anything to do with the violence got arrested." In addition to investigating a range of human rights violations, Citizens Legal Watch is trying to determine whether police provocateurs urged on the crowds and whether--as was widely rumored--some activists were turned away at the Czech border based on information provided by the FBI.

But amid the apparent chaos, there were signs of accomplishments. For one, pressure from the streets, building ever since Seattle, finally forced two traditionally secretive institutions to let some critics in the door. Representatives of Transparency International, which is calling for public access to World Bank and IMF documents, along with 350 representatives of nongovernmental organizations, were admitted to meetings in Prague (five years ago, only two NGOs were allowed in). World Bank president James Wolfensohn and IMF managing director Horst Köhler even met with NGO leaders in a public meeting presided over by Czech President Vaclav Havel.

Still, the substance of the new dialogue left much to be desired. "Understand that we are not a world government," Wolfensohn told NGO leaders. "Very often people blame us for the politics in a country when they should really blame themselves." Such defensiveness makes it hard to take seriously the World Bank and IMF claim that they want "to make globalization work for the benefit of all." As Liane Schalatek of the Heinrich Böll Foundation said, "NGOs have pointed out for more than three decades that growth is not just economic growth. We have heard the rhetoric." (Wolfensohn did manage to win over rock star Bono of U2, who left Prague calling him "the Elvis of economics.")

The Italian Zapatistas and Catalonian Marxists have now returned home. Czechs have reoccupied their city. And the jails are mostly empty (as of this writing, only twenty protesters remain in custody). But the Prague Fall is not over. The movement is globalized; critics have been admitted into the tent. And perhaps most important, politicians, central bankers and multinational chiefs are beginning to understand that corporate globalization faces truly global antipathy.

Let's give up some applause for Dick Cheney for affirming in deed, if not words, that homosexuality is perfectly consistent with traditional family values. The decision for a Republican candidate for the vice presidency to have an avowed homosexual at his side through virtually every hour of his campaign is a bit risky. It means taking on the forces of intolerance on the right wing of his party, a wing that at one time included Cheney and, more prominently, his wife.

However, now that Cheney has granted his lesbian daughter a major role in his campaign, is it not time for the candidate to distance himself from a Republican platform that would deny equal rights protection to all homosexuals? Evidently homosexuals can be reliable workers, and it should be illegal to discriminate against folks like Mary Cheney simply because of their sexual orientation.

"I think of her as sort of my aide-de-camp," candidate Cheney said in paying tribute to his daughter Mary in an interview last week with the New York Times: "She keeps all the paper flow coming to me; everything sort of funnels through her. More than that, she knows me. She has no qualms about telling me when she thinks I'm wrong, or when I need to do something. Mary will always come in and lay it right on me. My experience over the years is that's invaluable in a campaign. Everybody wants a good relationship with the candidate--not everybody will level with you. Mary levels with you."

One would accept such excellent skills to be valuable to any employer not biased by prejudice against gays. Yet anti-discriminatory laws are needed precisely because not all employers have had the opportunity to learn from their own offspring that homosexuals are indeed normal people.

Given that Mary Cheney is proving so valuable in the campaign, would Cheney, the person who'd be next in line to become commander in chief of the armed forces if George Bush wins, still stick to his oft-expressed view that homosexuals not be allowed to serve in the military? Would his daughter be more inclined than heterosexuals in the military to undermine morale by acting in indecorous ways?

The Republican platform declares that homosexuality is "incompatible" with military service and even stands "united" with the Boy Scouts in that organization's avowed policy of excluding gays. Does Dick Cheney believe that the Girl Scouts are amiss in not following the example of the Boy Scouts, and would he be in favor of excluding his own daughter from playing a role in that organization?

These questions are not intended to be cute or to pull the candidate's chain. They go directly to the hypocrisy in which we treat homosexuals as dangerous freaks unless we happen to be friends with, or related to, one.

Ignorance is the essential ingredient in hate. Dick Cheney probably didn't know his daughter was gay when he compiled one of the most viscously anti-gay voting records in Congress. He was one of only 13 representatives in 1988 who voted against funding for AIDS testing and research at a time when that was conveniently thought to be an exclusively gay disease, and one of only 29 that same year to vote against a Hate Crimes Statistics Act.

Perhaps he would vote differently now that his daughter, whose judgment he trusts in all important matters, has determined that she is indeed a homosexual. Should a woman of such sound thought and strong moral principles not be the best judge of her essential sexual nature? Or should we continue to be guided by the bigotry of legislators and religious proselytizers? It is still against the law in Texas to perform homosexual acts; does Mary Cheney have to retreat to Colorado to legally make love?

Yes, it would be best if such decisions could be left in the private realm, as the Cheneys now ask in refusing to discuss their daughter's sexuality. But it's too late for such niceties because the hate-mongers and their respectable allies in the Republican Party have for decades exploited homosexuality as a hot political issue. It is they who have thwarted every legislative effort to grant to homosexuals the same rights afforded all other citizens.

One can understand why Mary Cheney does not now want to become a poster woman for gay rights. But she is, by her father's witness, living proof that being gay is perfectly compatible with leading a moral, public-spirited and fully enriched family values life. She is a role model that even the political right might be forced to respect.

The Supreme Court opens its new term with a case that raises the stakes dramatically in the politics of fetal rights. At issue in Ferguson v. City of Charleston is whether a public hospital violates the Constitution when it tests pregnant women for drug use and turns over positive results to the police without so much as obtaining a search warrant.

Medical professionals and the general public agree that it is not desirable for pregnant women to use drugs. But this case raises a different question: Do women forfeit basic constitutional rights to equal treatment, due process and protection against unreasonable searches and seizures when they become pregnant?

South Carolina has been a leader in the movement, building ever since Roe v. Wade legalized abortion, to establish rights for fetuses. No state has done more to target pregnant women who use drugs. Starting in 1989, the Medical University of South Carolina (MUSC) invited the police and local prosecutor to help implement a policy directed at prenatal-care patients. Women who came to MUSC, the only facility for indigent patients in Charleston, were threatened with arrest if they tested positive for drugs. Some were jailed for the duration of their pregnancies (surely not an optimal environment for pregnant women's health), and others were jailed after giving birth, still in their hospital gowns. All but one were black. The crimes they were charged with--drug possession, child neglect and distributing drugs to a minor--carried penalties of two to twenty years.

South Carolina Attorney General Charles Condon has said, "There is no constitutional right for a pregnant mother to use drugs." True enough. But the Constitution does guarantee rights of personal liberty and due process, which in turn require that all people, regardless of race or gender, be treated fairly and equally under the law. And the Charleston police department has never arrested a male hospital patient and charged him with possessing drugs on the basis of a positive urine test.

The real issue is how to respect pregnant women's constitutional rights while improving their (and their future children's) chances of a good outcome. The state maintains that the "stick" of criminal intervention is necessary to make its policy of "encouraging" pregnant women to get treatment effective. But at the time the policy took effect, there was not a single residential drug-abuse-treatment program for women in the entire state. MUSC itself would not admit pregnant women to its treatment center. And no outpatient program in Charleston provided childcare so that pregnant women with young children could keep their counseling appointments.

Finally, arresting women after they give birth does nothing to promote a healthy pregnancy or newborn. This practice also hinders the basic goals of keeping families together and promoting family stability through the provision of rehabilitative services instead of punishment.

Condon has made plain his desire to challenge the premise underlying abortion law: that a fetus is not a person in the constitutional sense and has no rights of its own. In 1998 he told the Washington Times that he would be "proud" and "very pleased" to defend his policies, "even in terms of reversing Roe v. Wade."

Faced with sanctions and the loss of federal dollars when the federal government investigated MUSC for ethics violations and discrimination against African-American women, the hospital suspended its policy in late 1994. But the program's architects got a boost when the State Supreme Court ruled in 1996 that a viable fetus is a person under the children's code, a ruling that the US Supreme Court allowed to stand. Condon then instructed district attorneys around the state to prosecute for "child abuse" women who take drugs during pregnancy.

Because most women in the United States get pregnant at least once in their lives, the practical and political implications of the Supreme Court's decision in Ferguson v. City of Charleston will be enormous. Fetal rights advocates recently scored a victory in Massachusetts when a judge entered an order of protection on behalf of a fetus and took a pregnant woman into state custody. The state alleges that the woman let her last baby die shortly after birth but has not charged her with any crime. If the Court upholds South Carolina's policy, it will encourage similar actions, effectively putting American women on notice that if they become pregnant, their lives are no longer their own.

In May 1928 Marie Curie, the famed discoverer of radium and double Nobel laureate, received a disturbing letter from an American journalist. It told of young women at a radium watch-dial plant in Orange, New Jersey, who were dying from necrosis of the jaw, a rare degenerative disease. The women would tip radium-laden brushes in their mouths, blithely ingesting this intensely radioactive substance--at levels more than 10,000 times those allowed under today's standards. Plant managers had told them that ingesting radium would enhance their vitality.

At the time, Madame Curie herself was paying dearly for her pioneering work. Reading the letter was not easy, as she suffered from radiation-induced cataracts and from painful radiation burns on her hands. True to form, she refused to accept that her discovery had anything to do with this tragedy and advised the women to eat calf's liver. By 1934 Curie was dead from severe bone marrow damage and America was experiencing its first industrial epidemic of radiation-induced diseases.

Madame Curie's denial of radiation dangers is emblematic of the legacy we now face as America's romance with the atom draws to a close. The once dynamic and sprawling US nuclear weapons program, which underwent spectacular growth in the past fifty years, is winding down, leaving behind a tragic health legacy that, once again, is borne by working people. In the next few weeks, Congress will decide whether to enact a federal compensation program for the 600,000 people who helped make our nuclear weapons.

The current attention dates to the summer of 1999, when the Clinton Administration, spurred on by Energy Secretary Bill Richardson, proposed legislation to compensate nuclear weapons workers. In January of this year, a report prepared for President Clinton found that workers at fourteen federal nuclear facilities across the United States have higher than expected risks of dying from cancer or nonmalignant diseases following exposure to radiation and other substances. This official concession that nuclear weapons workers were harmed led to an unprecedented public outpouring in politically conservative company towns near federal nuclear sites. Workers told of being overexposed, getting sick and then having to battle against the government, which spared no expense to block claims. "The people in this area have been forced into poverty--they fall through the cracks, and they die," said Kay Sutherland, a cancer victim, at a meeting near the DOE's Hanford site in Washington.

In June an amendment to the 2001 defense authorization bill offered by Senators Fred Thompson and Jeff Bingaman was unanimously adopted by the Senate. The measure would create a federal program to provide compensation for illness, disabilities and deaths due to exposure to radiation or to beryllium or silica, two hazardous substances. The Senate provision is far from perfect, but it's a good start. However, it looked likely as we went to press that the provision was in jeopardy. Republicans in the House were at work fashioning a symbolic gesture that greatly reduces the benefits and provides no funding to compensate people.

I started working on this issue twenty-five years ago, first as an environmental activist involved in the lawsuit on behalf of the parents of Karen Silkwood, a contaminated nuclear worker in Oklahoma who was killed in November 1974 while trying to deliver safety documents to the New York Times. While it is personally gratifying to see this change take place, it still remains a tragedy for many who could have been helped as long ago as 1951, when the first official recommendations to help sick, overexposed weapons workers were secretly turned down. As we come to terms with the aftermath of the nuclear arms race, it is time for Congress to provide justice to working people who were put at risk without their knowledge and who paid with their health and lives.

The likely impact of the next few Supreme Court appointments on civil rights and racial justice is momentous. So much hangs in the balance that one feels simultaneously energized to make the upcoming election count, while despondent because so much struggle has nevertheless left progress so contingent on this election. Many people erroneously assume that racial progress in America is somehow inevitable. Put simply, however, the nation's moral compass is not too keen an instrument as regards minority rights. It is frequently misdirected by the flux of political passions and majority self-interest, so that fundamental matters of vision, values and ends are hotly contested.

The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word. One might expect that nonpolitical courts would be powerful engines for that project, but America's moral confusion is perhaps more apparent in the courts than in other precincts. Moreover, the next four years are certain to see a series of vital issues come before the High Court, and the outcomes are up for grabs this November.

The Constitution's principal tool for racial and ethnic justice is the equal protection clause of the Fourteenth Amendment. Longstanding Supreme Court doctrine interprets that clause to subject government decisions making use of race to a high standard of justification termed "strict scrutiny." This standard requires that the government's action serve a "compelling interest" and be "narrowly tailored" to fit that interest. Similar dilemmas of justification and proof occur in civil rights disputes that involve antidiscrimination laws rather than the Constitution itself.

Many recent affirmative action and voting rights decisions have been decided by a 5-to-4 vote against minority plaintiffs or local governments attempting to employ progressive race-conscious policies to combat discrimination or promote inclusion of one form or another. Justice Sandra Day O'Connor, who's written the majority opinions in some of the crucial affirmative action cases, has often included language that purports to moderate the views of the more conservative members of the Court. For example, in Adarand Constructors, Inc. v. Peña (1995), which involved set-asides in federal contracts for minority contractors, she made clear that the application of the strict scrutiny test would not be fatal to all federal affirmative action programs involving race-conscious policies, but that the one in Adarand seemed to trouble her. In her concurring opinion in Bush v. Vera (1996), she provided support for the proposition that complying with the Voting Rights Act could constitute a compelling governmental interest that could partially satisfy the first part of a court's strict scrutiny analysis of race-based Congressional district lines. And in Miller v. Johnson (1995), she insisted that while race cannot be a predominant factor in drawing election district lines, absent a compelling interest it may in at least some circumstances be one among other factors, such as protection of incumbents. But just not the one in Miller.

Justices Antonin Scalia and Clarence Thomas have often presented concurrences that would go further than the majority opinions by eliminating any form of race-conscious policy. In Adarand, Scalia largely ignored the country's long history of racial discrimination by equating the "way of thinking" that caused slavery and racial animosity with efforts to remedy racial discrimination through affirmative action. Similarly, Thomas's concurrence in the Adarand case called affirmative action "noxious" and "government-sponsored racial discrimination." In another context, Holder v. Hall (1994), a voting rights case, the concurring opinion of Justices Thomas and Scalia suggested an extraordinarily narrow interpretation of the Voting Rights Act that would limit it to the most egregious individual denials of franchise. As the four dissenters noted, such a narrow position was radical and would have required the overturning or reconsideration of at least twenty-eight previous Supreme Court decisions.

So as we undertake the massive Congressional, state and local redistricting flowing from the census 2000 results, the state of the law seems to be that majority-white districts can be drawn in any shape or fashion with virtual impunity. Majority-minority districts are subjected to strict scrutiny if they look funny to the Court. The Fourteenth Amendment and the 1965 Voting Rights Act never contemplated imposing heavier burdens on minorities in achieving democratic representation, but that's where the Rehnquist Court has left us. In the coming round of postcensus litigation, things could well get worse.

Several other constitutional developments are likely during the next presidential administration: First, the Court is likely to decide whether promoting diversity in education is a compelling governmental interest for strict scrutiny purposes. This issue, which now divides the lower courts, is critically important on thousands of campuses that currently use some form of race-conscious affirmative action in either admissions, financial aid or faculty hiring. It is also important, however, in elementary and secondary schools. Districts nationwide are struggling in policy meetings and lawsuits to understand their obligations and their discretion to combat racial segregation in our schools. Rehnquist-era rulings by the Supreme Court have opened a flood of court actions that, combined with segregated residential housing patterns, have served to reverse the progress toward integration and have brought a growing trend toward racial isolation, which correlates with an increasing number of high-poverty schools. This inevitably makes more difficult our efforts to improve educational achievement and knit the social fabric required to build one prosperous nation, in which we celebrate our differences as a source of richness and strength.

A ruling that racial diversity is not a compelling interest could occur under the current Court membership, depending on whether Justice O'Connor votes her conservative record or moderate rhetoric. With new Bush appointees, the result seems all but certain, and institutions and communities across the nation will be forced to set out on a different path, compass askew.

A second major development, however, might also threaten the rationale for policies to remedy discrimination. If the Scalia/Thomas perspective commands a solid majority, then the Court would narrow the grounds for race-conscious remedies, limiting them to specific instances of intentional discrimination today or in the very recent past. They might as well demand a photograph of racial animus dripping from the lips of some identifiable perpetrator to meet their solidly conservative test of strict scrutiny.

Finally, the Court will likely face cases in education, employment, healthcare and criminal justice in which minority plaintiffs will offer overwhelming evidence of disparate harsh effects from some policy--whether a high school exit exam or criminal sentencing--and demand that the defendants meet a high standard to justify racial consequences of their actions. Will the courts continue to leave the door open so that such disparities can, in some cases, be considered evidence of discrimination requiring remedy? Many observers fear that under the current Court, these principles are hanging by a thread.

In sum, the usual Court majority in civil rights cases has been composed of Chief Justice Rehnquist and Justices O'Connor, Scalia, Thomas and Kennedy. The usual dissenting minority has been composed of Justices Stevens, Souter, Ginsburg and Breyer. Focusing on the four Justices often mentioned as potential retirees, if a President George W. Bush were to replace Justice Ginsburg, a Clinton appointee, he will confirm and accelerate the drift away from judicial solicitude for efforts to eliminate the vestiges of racial caste. Much the same will be true if Bush replaces Justice O'Connor's swing vote with a more conservative voice, because the hard-edged conservatism of the Scalia-Thomas faction would be strengthened. Their sweeping, close-the-door concurring opinions would become majority statements of doctrine, rather than the portentous minority saber-rattling they are now. And the Court would more aggressively scan the lower-court dockets seeking cases to review in order to make or confirm conservative doctrine. By contrast, a President Al Gore, given an opportunity to replace Rehnquist or O'Connor, could not only keep the opportunity door ajar but also move to erode the dispiriting Rehnquist-Reagan era retrenchments.

For minority communities that have faced difficulty over the years electing representatives of their choice, feeling that their votes might matter little if at all, the stakes on the Supreme Court make the get-out-the-vote message this fall obvious: You now have a vote. Use it or lose it.

Justice John Paul Stevens looked great the last time I saw him, celebrating his eightieth birthday, playing the back nine of his life, where the important games are won. He is the Court's leading liberal and its oldest member; he was considered a moderate when I worked for him twenty-two years ago, which is more a measure of how far the Court has moved than how far he has. His tennis game is still sharp, for which I am grateful, since his good health may be what stands between American women and a major setback for reproductive freedom.

For years, feminists have sought to draw a link between the presidential election, the Supreme Court and reproductive freedom. You vote for the Court when you vote for President. You're voting on Roe v. Wade. That's what we say. And it never works. When you hear candidates giving speeches about the Supreme Court, it better be Law Day, or it means they're in trouble.

So here we go again. What will happen if George W. Bush is elected and another Justice or two retire? Will middle-class women lose the right to take a pill or undergo a procedure in doctor's offices that will terminate unwanted early-stage pregnancies?

Probably not.

Will abortion again be illegal in America?

Probably not.

Will doctors across America be locked up for what are now routine procedures?

Probably not.

At the same time, we can expect even more severe restrictions on a woman's right to choose. Right now, there are three votes on the Court to get rid of Roe altogether and often four or five to impose costly, chilling and burdensome regulations on the exercise of that right by the patient and her doctor. The trimester approach of Roe, which recognized the mother's health as the only legitimate basis for government regulation prior to viability, has given way to an "undue burden" test, applicable to all regulations. Government is no longer required to be neutral with respect to how a woman exercises her right to privacy.

In states where legislatures are antichoice, abortion statutes get loaded up regularly with all kinds of time, place and manner restrictions, consent forms and waiting periods, and even bans on procedures, like the legal creation of a "partial-birth abortion." Then the Supreme Court sorts it out. What is more striking than the creativity of the various approaches is how easy it would be for them to win even more than they do if they just added a few "life or health of the mother" clauses here and there. They know that, too.

"Life's not fair," Jimmy Carter declared, when the Supreme Court upheld the right of state and local governments to deny public funding to poor women seeking abortions. In the years since, it's gotten more unfair. In the future, if George W. Bush wins, it will get even more unfair.

What Roe v. Wade now means is that if you're lucky enough to live in a place where doctors aren't afraid to do abortions and you have the money to pay for one, you don't have to bring cash in a plain envelope. It's safe and legal, until viability. In Los Angeles, you can open the phone book.

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Since William Rehnquist became Chief Justice of the United States, the Supreme Court has decided only three cases dealing with gay rights, and in all of them the Court has been relatively respectful (if not always supportive) toward those who are gay, lesbian or bisexual. The decision this June, however, upholding by a single vote the right of the Boy Scouts to dismiss an openly gay scoutmaster, reminds us that true equality for gay people will arrive only when the Supreme Court is not controlled by Justices whose moral view of gay people is negative.

Liberals believe that moral judgments should not affect governmental actions, because individuals have certain rights--to equality, to intimate association, to privacy--that are not connected to the substance of their actions. But in reality, legislative and judicial decisions are often shaped by the moral assessments of legislators and judges. A case in point is Bowers v. Hardwick, decided in 1986, just before Rehnquist became Chief Justice. In Hardwick the Supreme Court upheld the constitutionality of the Georgia sodomy statute, which criminalized oral or anal sex engaged in by any two individuals, regardless of the individuals' gender or sexual orientation. Although the legal question should have been whether the constitutional "right to privacy" prohibited a state from criminalizing intimate sexual conduct, a 5-to-4 majority framed the question as whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Chief Justice Warren Burger added a three-paragraph concurrence to underscore that condemnation of homosexual conduct was firmly rooted in Judeo-Christian moral standards.

During the next ten years, the country witnessed an increase in activism and visibility by the gay community. One symbolic aspect of this push for visibility was the decision of gay descendants of Irish immigrants to march in the St. Patrick's Day parades in New York City and Boston. The message these marchers wanted to send was clear: "Irish is good. Gay is good. Irish gay is good." But in a 1995 decision, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Supreme Court upheld the Boston parade organizers' refusal to allow the gay Irish group to march. The tone of the opinion, however, reflected a sea change in the Court's attitude toward homosexuality since Hardwick.

Justice David Souter, writing for a unanimous Court, explained that most parades are intended to express something, and the gay Irish group had a message: that gays "have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics." To Justice Souter, it was perfectly understandable that a group might wish to express such a message, which he described respectfully. The parade organizers did not wish to send such a message, however, and the First Amendment precludes the government from forcing people to utter speech they do not wish to utter.

While gay Irish groups have never managed to march in either the Boston or New York parade, gay people have succeeded in getting some 165 laws and ordinances enacted to prohibit government, private employers and private businesses from using sexual orientation as a basis for adverse actions. Proponents of these laws insist they are neutral on the morality of being gay and simply establish equality. But opponents contend that this liberal neutrality rhetoric ignores real moral disagreements over gay sexual conduct. People who believe homosexuality is morally wrong cannot adopt a "live and let live" attitude toward the passage of sexual-orientation nondiscrimination laws.

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Tonight is the finale for insiders and outsiders in Los Angeles this
week: In a few hours, Al Gore will be giving his acceptance speech at
the Staples Center.