Next Move Up to States In Wake of Court Ruling
Pro-life forces cheer high court's green light for new state restrictions. ABORTION
BOSTON — THE US Supreme Court - by upholding a highly controversial Missouri law restricting abortion - may have set off a major struggle in state legislatures and at the polls over the broader concept of privacy and its constitutional protections. The immediate debate has international implications, with foes of abortion reportedly stepping up right-to-life activities across Western Europe. They are focusing on Britain, France, Italy, Spain, and West Germany - countries where it now is relatively easy legally to terminate pregnancy.
Monday's long-awaited, 5-to-4 ruling in Webster v. Reproductive Health Services could invite anti-abortion lobbyists to reexamine abortion rights and restrictions in all 50 states with an eye toward greater government control, say critics. Judith Widdecombe, founder of the clinic involved in this decision, says she fears that the high court's action will encourage those around the nation who want to outlaw abortion completely. She predicts that the issue will become the ``Vietnam of the 1990s.'' (See story, Page 8.)
A key political goal of the Reagan administration was to find channels, judicial or legislative, to repeal the landmark 1973 Roe v. Wade decision, which affords a constitutional guarantee for a woman's right to an abortion.
The Roe ruling opened the door, however, to state restrictions on abortion after the first trimester. A series of state laws limiting abortion have, for the most part, been struck down by the Supreme Court over the past 16 years on the basis that they invaded a woman's right to privacy.
Right-to-life advocates hoped that the high court would, in effect, overturn Roe in its ruling on Webster v. Reproductive Health Services. Chief Justice William Rehnquist, however, stressed the narrowness of the new decision, acknowledging only that it ``will undoubtedly allow more government regulation of abortion than was permissible before.''
But Associate Justice Harry Blackmun, the author of Roe, in a strong dissent pointed out that although a woman's right to have an abortion still survives, it is no longer secure.
Justice Blackmun said: ``A plurality of this court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that some time down the line the court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before Jan. 23, 1973.''
The Supreme Court has already indicated that it will consider next year the requirement in some state laws that a minor obtain parental permission or judicial consent to get an abortion.
Monday's ruling skirts the broad issue of whether life begins at conception, but it does allow states to require that physicians determine whether a fetus could survive outside the womb for all woman at least five months pregnant. It also, among other things, permits states to ban the spending of public funds to counsel women to have abortions, and allows states to abolish abortions in public hospitals or clinics, but not in private facilities.
The Missouri statute was drafted as a vehicle to challenge Roe. Parts of it have been struck down by lower federal courts. The Eighth US Circuit Court of Appeals in St. Louis, however, upheld a provision banning the use of taxpayer money for performing or assisting an abortion.
The Supreme Court split along liberal-conservative lines in overturning the appellate courts and upholding key planks in the Missouri law. Voting along with Chief Justice Rehnquist were Associate Justices Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, and Byron White. Dissenting with Justice Blackmun were Associate Justices William Brennan, Thurgood Marshall, and John Paul Stevens.
Justice O'Connor, who has been a staunch supporter of women's rights, had been expected to cast a pivotal vote on this issue. She did not join her fellow conservatives, who would have overturned the trimester approach in Roe. Justice Scalia alone would have gone further and reversed the 1973 ruling altogether.
The high court voted the other way, 6 to 3, in determining that the part of the Missouri statute that says that ``the life of each human being begins at conception'' and that ``unborn children have protectable interests in life, health, and well-being'' has no legal impact and is not a controversy for the justices.
Reaction to the ruling seemed predictable. Right-to-life groups were elated and expressed confidence that their crusade to ban abortion is now on track and headed for future victories in court. Pro-choice groups expressed grave concern over what they see as a serious setback to a woman's fundamental right to privacy.
The privacy debate came into sharp national focus early last year with the nomination of Robert Bork to the Supreme Court by then-President Reagan. Civil rights groups, including women's organizations, rallied to oppose Judge Bork, partly on the basis that he challenged the concept of privacy as constitutionally protected. They feared that he would oppose abortion on philosophical as well as political grounds.
When the Bork nomination failed in the Senate, replacement nominee Anthony Kennedy, a Roman Catholic, said he was opposed to abortion on religious grounds but would vote on the merits of a particular case.
The justices are increasingly facing the privacy issue in homosexual rights, drug-testing, and AIDS cases as well as those involving abortion.
Liberal Justices Brennan and Marshall - the court's staunchest protectors of individual rights - are the tribunal's most senior members and may likely retire from the bench before other important abortion decisions.