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Supreme Court: avoiding a `holy war' over the abortion issue

IT'S ironic -- and probably a good thing -- that the United States Supreme Court has not considered abortion a ``religious'' issue -- by First Amendment standards. To date, the court has decided abortion cases in terms of family privacy, government responsibility for public funding, and the clarity and enforceability of state laws.

Nonetheless, almost all abortion-related rulings have resulted in an emotional outcry from those who euphemistically call themselves ``pro-life'' advocates on the one hand or ``pro-choice'' on the other.

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The deep-felt beliefs of some individuals that abortion is a ``sin against God'' must be respected. They are legitimate, perhaps praiseworthy. But others have moral, if not spiritual, concerns about overpopulation and the unhappy plight of unwanted children. And on that basis, they justify abortion. This view must also be respected.

It would probably be impossible for the courts to decide definitively such issues as when human life begins without becoming immersed in a theological debate -- which the Constitution forbids. For if the court ruled that life starts at the moment of conception, derived from a particular religious view -- and thereby outlawed abortion -- it would be unconstitutionally favoring one church over another. On the other hand, if it decided that life actually begins at a later point as a result of a theological argument -- and allowed abortion on that basis -- it would also be treading on thin ice with the ``Establishment'' clause of the First Amendment, which bars religious entanglement of the state.

So the court would be hard pressed to allow abortion or forbid it based on First Amendment church-state arguments.

That is not to say that the Supreme Court will not reverse its position on abortion and alter its controversial decision of 12 years ago in Roe v. Wade. Possibly, if the so-called ``pro-lifers'' are successful in getting a federal law outlawing abortion as a result of direct legislation or a constitutional amendment, the court will be asked to rule on the legality of such action.

Meanwhile, Roe v. Wade is still the law of the land. But it's not a flat endorsement of abortion, as some of its most vocal critics aver. It's much less. What the court said was that most laws criminalizing abortions violated the due process of law guaranteed in the Fifth and Fourteenth Amendments.

Basing its ruling on a woman's constitutional guarantee of privacy, the justices ruled 7 to 2 that abortion is an absolute right only in the first trimester of pregnancy. States had the right to regulate in the next three months. And they could forbid abortions in the final three months, taking into consideration the health and safety of the mother.

It is interesting to note that Justice Harry A. Blackmun, author of the majority opinion, and all but one of the seven justices who endorsed it were appointed by Republicans -- Eisenhower and Nixon. The two dissenters were Kennedy and Nixon appointees.

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Constitutional scholar Leo Pfeffer [whose new book is reviewed below] points out that the court refused to decide whether anti-abortion laws violated the First Amendment's religious protections. Mr. Pfeffer explains that Justice Blackmun did note that religious training was likely to influence one's views about abortion. And he added that Roman Catholics, Protestants, and Jews had differing views on when life begins.

A 1980 Supreme Court decision also rejected a First Amendment argument that such refusal would, in effect, advance those religions that deemed abortion sinful. Justice Potter Stewart said that a law was not unconstitutional simply because it ``happens to coincide or harmonize with the tenets of some or all religions.''

Bombings of abortion clinics, marches by pro-choice forces, and heated rhetoric by both sides still surround the abortion controversy. Fortunately, government and religious leaders -- on both sides of the issue -- are condemning violence. And some are reportedly seeking compromises.

Future litigation and proposed legislation on both the state and federal levels promise to keep the question on the political battlefield for a long time to come. But, despite deep religious implications for many, lawmakers and the courts would do well to continue to keep themselves unentangled with the First Amendment and thereby keep the abortion issue from sparking a holy war. A Thursday column

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