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Abortion opponents nearly won late 1980s court battle

| Monday, Jan. 21, 2013, 12:01 a.m.

In the late 1980s, the anti-abortion movement appeared to be on the cusp of victory, with Pennsylvania leading the charge.

Gov. Bob Casey, a Roman Catholic and anti-abortion Democrat, took office in 1987, six months after the Supreme Court's 5-4 ruling against Pennsylvania's Abortion Control Act showed the constitutional right to abortion rested on a slim margin.

Casey in 1989 shepherded through the Legislature another set of abortion restrictions, designed in part to mount another Supreme Court challenge to Roe v. Wade, said then-Attorney General Ernie Preate.

Planned Parenthood of Southeastern Pennsylvania sued and the Third Circuit Court of Appeals upheld most of the law's restrictions on Oct. 21, 1991. Two days later, Justice Clarence Thomas, one of the court's most conservative members, replaced Justice Thurgood Marshall, who had joined the original majority in Roe v. Wade. Abortion foes had their vote.

“The handwriting was on the wall,” said Kathryn Kolbert, then a lawyer with the Women's Law Project in Philadelphia who argued the cases against Republican Gov. Dick Thornburgh's and Casey's abortion laws.

Kolbert's team wanted the court to rule before the 1992 presidential election, so abortion rights would become a campaign issue. They filed a Supreme Court appeal in two weeks, asking the court to rule explicitly on Roe v. Wade.

“If we were going to lose, we needed to convince the American people what was at stake,” Kolbert said.

Ken Starr, solicitor general for President George H.W. Bush, joined Preate for oral arguments on April 22, 1992. Theirs was a two-pronged assault, Preate said. He defended the law's restrictions, and Starr argued the court should overturn Roe.

The court delivered its opinion on the session's final day, June 29. Justice Anthony Kennedy, who was expected to vote to overturn Roe, joined Justices Sandra Day O'Connor and David Souter in a dramatic switch that preserved abortion rights while upholding most of Casey's law.

“It literally took me five or six hours to process what had happened,” Kolbert said. “My early comments (to reporters) were all about how they blew a hole in Roe ... but at the end of the day, I realized, ‘Oh my God, we won this case.'”

Preate, too, claims victory. Pennsylvania's law became an example for states looking to restrict abortion rights, he said, even though Roe v. Wade is a “precedent (that) has been ingrained into the American culture for 40 years.”

Mike Wereschagin is a staff writer for Trib Total Media. He can be reached at 412-320-7900 or mwereschagin@tribweb.com.

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