Supreme Court At Last Takes Up Abortion Issue
While decision may not mean outright end to Roe, 11 states are waiting to restrict rights. PIVOTAL DECISIONS
THE status of abortion rights in the United States is nearing another turning point.
Tomorrow, the US Supreme Court is hearing a case that abortion-rights advocates are billing as the all-but-certain end of constitutional protection for abortion decisions.
The outcome may not be nearly so dramatic a shift. But even a decision close to what the justices have already decided in the past three years would result in greater difficulty for many women to obtain abortions.
The case is a challenge to a Pennsylvania law that restricts the right to abortion. The justices will hear oral arguments Wednesday, and a decision is expected by late June.
The restrictions in this case do not approach an outright ban.
Before performing an abortion, a doctor would provide information about fetus development and abortion alternatives, then wait 24 hours before the operation. A girl under 18 would need the permission of a parent or a judge. A married woman would be required to notify her husband before an abortion, except under threat of violence.
All these restrictions except the husband-notification rule survived the scrutiny of Third US Circuit Court of Appeals on their way to the Supreme Court.
The key issue in this case is the standard the court uses.
The 1973 Roe v. Wade decision established abortion as a fundamental right, so that any state regulation had to prove a compelling state interest to be allowed. The court has been gradually lowering the threshold for state restrictions on abortion in recent years. In the 1989 Webster v. Reproductive Health Services decision, Justice Sandra Day O'Connor - the swing vote - wrote that states could impose restrictions on abortions so long as they did not impose an "undue burden" on a woman's legal right to ob tain an abortion.
If the court affirms the use of the undue-burden test, then many restrictions such as those in Pennsylvania's law may pass constitutional muster. But sweeping bans such as those enacted in Guam, Louisiana, and Utah would probably not stand. If the court adopts a more hands-off standard that says a regulation must simply have a rational basis, then the constitutional protection for abortion is virtually gone.
Under this standard, even Guam's strict ban, which was struck down as unconstitutional by an appellate court last week, would stand a chance of surviving.
Four Supreme Court justices have indicated a willingness to adopt a rational-basis test for restrictions on abortion - Antonin Scalia, Byron White, Anthony Kennedy, and William Rehnquist. That is one vote shy of a majority.
Clarence Thomas is an unknown quantity, but one who has often followed Justice Scalia's analysis on other issues. Justice O'Connor has opted for the more moderate undue-burden test, which could prevail if hers is the needed fifth vote for a decision. David Souter, whose views on this isuue are also unknown, may be near O'Connor's reasoning.
Abortion-rights advocates argue that any retreat from the strict standard of Roe v. Wade is "an evisceration of Roe," says Kathryn Kolbert, the attorney for the petitioner in the Pennsylvania case, Planned Parenthood.
Many other legal scholars, however, believe that in those purist terms Roe was overturned three years ago in the Webster decision. "Roe has been effectively overturned, or at least curtailed," says Edward Keynes of Pennsylvania State University. Political strategy
But abortion-rights forces are using more of a high-risk political strategy than a legal strategy. Giving up on the increasingly conservative courts, they hope that an antiabortion decision will mobilize the political will to pass federal legislation barring almost any restriction of abortion rights.
The proposed law, in fact, is "more sweeping than Roe," says Notre Dame law professor Douglas Kmiec. Under it, he says, none of the current restrictions on abortions would survive.
The risk in the strategy is that most voters are unlikely to find the Pennsylvania restrictions very onerous, says Celinda Lake, a Democratic pollster. They also see the basic right to abortion as essentially safe. If the decision is seen as a set of restrictions, then it will have little or no political impact, she says.
But if the decision is perceived the way the abortion-rights forces are casting it, as a major rollback of the basic right, then it will mobilize voters - especially educated young women - to the benefit of Democrats, says Ms. Lake.
If the court opens the door, then both governors and legislatures in at least 11 states are ready to substantially outlaw abortion, according the National Abortion Rights Action League. The states are Louisiana, Utah, Alabama, Michigan, Mississippi, Missouri, Nebraska, Ohio, Pennsylvania, West Virginia, and Wisconsin. In South Carolina and South Dakota, the governors oppose abortion and the legislatures are closely divided.