What `Roe' really says. For almost a decade and a half, Roe v. Wade has been misread, misinterpreted, and misused.
ABORTION is fast becoming the issue that divides United States liberals and conservatives. Or at least that is what the political extremists would have us believe.Skip to next paragraph
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Place Bob Bork on the US Supreme Court and you can say goodbye to ``Roe,'' warn ultra-liberal naysayers.
Give us Bork and abortion will be banished forever, predict the conservative hard-liners.
With all due respect, both are wrong!
The liberals misread Bork. The conservatives misread ``Roe.'' And they both misread America.
Let's start with ``Roe.'' That's Roe v. Wade, the landmark Supreme Court ruling of 1973, which many liberals hail as legalizing abortion and just as many conservatives decry for the same reason.
For almost a decade and a half, Roe has been misread, misinterpreted, and misused.
Its backers - among them so-called ``freedom of choice'' champions - say this ruling unconditionally established a woman's constitutional right to do as she pleases about a pregnancy.
Its detractors - among them so-called ``right to life'' advocates - say this decision signaled open season on the destruction of fetuses and spurred the proliferation of abortion clinics across the land.
Just what is it that Roe really accomplished? Basically, a very modest thing.
The justices, by a 7-to-2 vote, declared invalid state laws that prohibited or restricted a woman's right to obtain an abortion during her first three months of pregnancy.
And they drafted a new set of national guidelines that, at the time, liberalized existing antiabortion laws in more than 40 states but did not abolish restrictions altogether.
Specifically, the 1973 ruling held that:
1.For the first three months of pregnancy, the decision to have an abortion was one of individual choice and that the state's interest was not ``compelling'' enough to warrant interference.
2.For the next six months of pregnancy, a state may regulate the abortion procedures in ways reasonably related to maternal health.
3.For the last 10 weeks of pregnancy - the period during which the fetus is judged capable of surviving if born - a state may ban abortions outright (if it wishes) except where such a procedure may be deemed necessary to preserve the life or health of the mother.
Associate Justice Harry Blackmun, who wrote for the majority with the support of six of his colleagues, rejected the idea that a woman had an absolute right to an abortion and could terminate her pregnancy at any time or in any way and for any reason she chose.
Roe v. Wade was based on the right to privacy - a freedom not specifically spelled out in the US Constitution but implicit, according to the court, in the Bill of Rights. Its effect over the years has not been a rash of abortions but mainly an emotional debate over interpretation - and marches, rallies, and even some violent demonstrations by those who want a court reversal or a congressional enactment to reverse the ruling.
Attempts to invalidate the Roe decision have so far failed in the court - although the justices will have a chance next term to uphold a state law that establishes a ``waiting period'' for teen-age abortion.
Antiabortion measures on state ballots have also lost in 21 of 22 challenges.
Would Senate confirmation of Reagan's Supreme Court nominee Robert Bork change all this?
Some head-counters say Bork could tip the scales against Roe - with Chief Justice William Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia, and Byron White (along with Bork) creating a new antiabortion majority.
Some civil rights and minority groups - among them the National Organization for Women, the National Association for the Advancement of Colored People, and the American Civil Liberties Union - fear this potential coalition. And they are pushing hard to derail the Bork appointment largely on this basis.
But others are not so sure. The nominee has a strong conservative record. He has openly opposed abortion in the past. He favors letting legislators - and not judges - make laws. And he philosophically questions raising the concept of ``privacy'' to the level of constitutional protection.
It is safe to say, however, that Bork - if confirmed by the Senate - will vote on the merits of a particular case, regardless of how he personally feels about abortion. He is also not insensitive to legal precedent and the potential for social disruption when it is set aside.
The same can be said for Mrs. O'Connor, who is also personally opposed to abortion but has a record of voting legal merits, not personal preferences.
The court does not have a case before it that could result in the repeal of Roe v. Wade. And President Reagan and Attorney General Edwin Meese III notwithstanding (both want the 1973 decision overturned), it is not likely to have one in the immediate future.
Abortion will disappear or continue as individuals gain, or fail to gain, a clearer concept of the worth and dignity of human existence.
Courts and legislatures have the power to change laws; they can do little to alter abiding convictions about life.
A Thursday column