Litmus Tests For Abortion

JUSTICE

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WHILE the United States Supreme Court has grappled this term with peripheral abortion issues revolving around parental notification and judicial consent for teenage termination of pregnancy, the real tests for abortion are yet to come. They may, however, be around the corner. A federal ruling in Boston allowing public funds to be used for family planning groups that give information on abortion is almost certain to be routed to the Supreme Court. So is a state legislative decision in Idaho banning abortion in all but extreme circumstances.

Abortion has become the major social controversy in the US - with both sides airing the issue in state and national political contests, before Congress, and at the presidential level.

The Justice Department of President Bush has picked up the cudgels of Reagan law enforcement with an avowal to dismantle the landmark 1970s abortion ruling, Roe v. Wade. Roe set up a trimester structure, allowing abortions in the first three months of pregnancy but permitting states to impose restrictions after that time.

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The issue for the justices up to now has been how far a state may go to limit abortion. A year ago, in a Missouri case, the court upheld a restrictive abortion law but sidestepped the central issues in Roe and refused to rule on the question of when life begins. A main contention of the anti-abortion movement, including some religious groups, is that life begins at conception and abortion therefore constitutes murder.

The two abortion disputes now in the news may not settle that argument, but they deal with basic issues that could change Roe. They also show the wide split among state lawmakers and judges across the nation on the abortion issue.

In Massachusetts, the US Court of Appeals for the First Circuit last week strongly reasserted abortion rights of poor women, ruling that Reagan administration regulations withholding federal funds from clinics giving abortion advice was unconstitutional.

Chief Judge Levin H. Campbell, writing for the Boston-based court, not only endorsed Roe but probably also expanded it. He wrote: ``As the Supreme Court in Roe v. Wade ruled that a woman's right to an abortion was constitutionally protected, I do not see how the government, consistent with the First and Fourteenth Amendments, can deny funding to those who would give objective advice on this constitutionally protected alternative.''

At one swoop, Judge Campbell seemed to assert the constitutionality of abortion, a woman's right to make such a choice, and equal protection under the law for those seeking advice and counsel on this subject.

While the First Circuit was hammering firm the judicial pins for allowing abortion, half a continent away the state legislature in Idaho was putting in place a statute that all but outlaws abortion. This law, considered the toughest anti-abortion measure in the land, disallows abortion except in cases of rape, incest, severe fetal deformity, or threats to the physical health of a woman. It puts the legal burden of compliance, however, on medical doctors and not on the pregnant woman.

The Idaho law will doubtless face numerous challenges. Its backers say they would welcome a Supreme Court test as a direct challenge to Roe. A conservative high court is not prone to overturning legislative enactments or state court rulings unless they blatantly violate the Bill of Rights. Further, this court is not given to sweeping decisions and may chip away at the landmark 1973 decision on a case-by-case basis.

A crucial vote in the Idaho case may be the one cast by Associate Justice Sandra Day O'Connor. Although a defender of women's rights, she may be willing to uphold a law that places strong restrictions on abortion but does not impose criminal sanctions on those who have one.

The Circuit Court ruling may be more vulnerable to reversal since it overturns executive regulations and extends, rather than limits, judicial authority in this area.

What all this means is that Roe v. Wade, which has withstood public and judicial battering until now, could be set up to fall in the 1990s.

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