High Court may clarify its mixed signals on abortion issue
Almost exactly a decade since handing down its landmark ruling on abortion, the United States Supreme Court is still untangling the legal snarls surrounding it.Skip to next paragraph
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The justices will tackle the problem once more this week as they hear arguments in three major cases involving local governments that have passed laws to restrict and regulate abortion.
The justices' decisions, expected sometime next year, could tell whether the high court still stands solidly behind its historic 1973 Roe v. Wade ruling, which affirmed a woman's right to choose abortion under certain circumstances. While the court has never backtracked on that basic finding, it has yet to give clear instructions on how much control governments have over abortion.
In the most important case in at least two years, the City of Akron, Ohio, is defending a raft of regulations. They range from a requirement that doctors counsel patients that human life begins at conception to a mandatory 24-hour waiting period between when the decision is made and the abortion is performed. Akron also requires that all abortions after the first trimester be performed in a hospital instead of a clinic.
Such rules are typical of those drawn up in the heated controversy since the Supreme Court's '73 ruling. Twenty-two states, for example, have passed laws requiring hospitalization for abortions after the third month.
''State legislatures have passed laws knowing they'd be overturned'' in the courts, says Janet Benshoof, attorney for the American Civil Liberties Union (ACLU), which will argue against the Akron ordinances Tuesday. Cases involving Missouri limits on abortions for minors and a Virginia hospitalization requirement will be heard the same day.
The ACLU attorney holds that the Akron regulations are ''direct obstacles'' to a woman's choice on abortion. ''Only about 10 percent of hospitals do abortions,'' she says of the hospitalization requirement.
But more important, she says, is how the court rules on the issues of counseling and the 24-hour wait, since these regulations are aimed at even the first stages of pregnancy - during which, the Supreme Court has held, states may not restrict abortion rights. At stake, Ms. Benshoof says, is ''whether Roe (v. Wade) will be affirmed.''
Although it is not a party in the cases, the Reagan administration has come down on the side of the local restrictions. In a brief, US Solicitor General Rex E. Lee asks the court to keep hands off abortion regulations.
''In our democratic society the governmental body with the primary authority and responsibility to resolve competing policy views and pressures among citizens is the legislature,'' argues the Reagan administration.
As the brief points out, the since the first abortion decision the courts have ruled on the issue on a case-by-case basis.
One reason for the legal confusion is the double message coming out of the Supreme Court. After establishing a right of choosing abortion in 1973, the court three years later strengthened that ruling by throwing out Missouri provisions that impeded access to abortions. It decisively ruled that the husband has no veto right over a wife's abortion decision.
But in 1977 the court handed anti-abortion forces a major victory. It upheld a federal law that cut off US government funds for abortions except when the mother's life was in danger. Critics charged that the decision particularly affected poor women, who were most likely to rely on federal funds to pay for abortions. The result, according to A. E. Dick Howard, a University of Virginia constitutional law professor, is that ''public policy can be directed toward discouraging abortion but not to impede access.''
''In the real world, those two lines of cases create an inherent tension,'' Mr. Howard says. ''The court is sending out mixed signals,'' he adds, comparing the situation with the 1950s and '60s when Southern states tried to roll back the high court's decisions on desegregation. The difference is that the justices were consistent and unanimous on desegregation, he says.
On abortion, he adds, they are divided and inconsistent, ''and that keeps the battle alive. . . . I think the Akron cases will tell us a great deal about where the court draws the line.''
However, the cases now before the Supreme Court will not end the controversy. Charles E. Rice, a professor at Notre Dame University Law School, has filed a brief for the Catholic League for Religious and Civil Rights asking the court to go beyond the cases at hand and reverse the Roe v. Wade decision.
Mr. Rice concedes that such a reversal is unlikely; therefore, from his viewpoint, the cases now before the court will resolve only minor issues. ''None of these restraints involves prohibition,'' he says.
Professor Howard also sees the legal battle continuing. ''Akron will not be the last chapter, just like we haven't seen the end of (lawsuits on) busing,'' he says. However, the Akron-Missouri-Virginia cases will give the public ''an opportunity to observe Justice O'Connor's position,'' he says.
The new associate justice, Sandra Day O'Connor, is on record as favoring deference to state courts, but it's not clear if that position will extend to abortion regulation.