High court to rethink abortion?
Boston — The United States Supreme Court could be positioning itself for overruling its landmark abortion rights ruling of 15 years ago, Roe v. Wade. Although no case is presently on the docket which addresses the issues in Roe, several cases are in the wings. Further, an increasingly conservative court may well be receptive to those who would impose stricter abortion limits or abolish the practice completely.
Supreme Court Associate Justice Harry Blackmun signaled in a law school speech this week that the 1973 abortion ruling could be overturned within the next year, says Bruce Fein, a conservative constitutional scholar.
Justice Blackmun, who wrote the opinion for Roe, told University of Arkansas students that ``there is a very distinct possibility that it will, this term. You can count the votes.''
The high court jurist was alluding to the possibility - if not probability - that his newest colleague, Associate Justice Anthony Kennedy, would provide the necessary fifth vote to reverse, or limit, abortion rights.
``He would have been foolish to say that,'' says Mr. Fein, ``if he hadn't talked to Tony Kennedy.
``Kennedy will be a strong member of the conservative bloc'' on this issue, Fein suggests.
Some groups want abortion included in the presidential debates between George Bush and Michael Dukakis.
For example, Kate Michelman - executive director of the National Abortion Rights Action League (NORAL) - says that the possibility that the Supreme Court may some time soon overrule Roe should make the court and abortion ``a major issue of this campaign.''
NORAL has endorsed the Democratic presidential nominee and Ms. Michelman insists that ``this is an issue Dukakis can shape.''
Meanwhile, right-to-life groups are urging Congress to pass an anti-abortion constitutional amendment and prodding the Supreme Court to take steps to turn around Roe.
Ronald K.L. Collins reads Blackmun's pronouncement and the Supreme Court's possible response to abortion differently than Fein.
``Blackmun wants to inject this issue into the presidential debates,'' says Professor Collins, a judicial expert who holds visiting law professorships at American University and Temple University.
``He wants to leave the impression that Kennedy will vote against Roe. And he also wants to alert those on Capitol Hill that he [Blackmun] may leave the Court after this term'' and that the Senate must carefully question future nominees on the question of abortion, he explains.
Whether the votes are there to reverse Roe, the high court as of now has no case before it to do so.
However, both sides say there is a strong possibility that the justices soon will look at cases from Minnesota and Ohio, where federal appellate courts have come down differently on the issue of teen-age abortion.
Just last month, the US Court of Appeals for the Eighth Circuit upheld a Minnesota law that requires women under 18 who want abortions to notify both parents or get approval from a judge. But the US Court of Appeals for the Sixth Circuit also held in August that a similar Ohio law was unconstitutional.
Half of the states have parental notification laws in regard to teen-age abortions. But many have been reluctant to enforce them, without a high court ruling supporting the laws.
Last term, the justices split 4 to 4 on an Illinois law that was similar to the Minnesota statute. A lower court had struck it down as unconstitutional. This vote came before Justice Kennedy was confirmed.
Some believe that the newest justice will not only tilt the court toward laws restricting teen-age abortion but that his decisive ``fifth'' vote could open up the broader issue of the constitutionality of Roe v. Wade.
Michelman says the jurists could use the vehicle of the Minnesota or Ohio cases on parental notification as a springboard to review the broader reasoning on Roe.
She points out that the court has established precedent for such action.
It recently placed on its docket for reargument a gender-bias case that was heard last term to reassess whether affirmative action matters should continue to be based on post-Civil War statutes.
Meanwhile, anti-abortion winds are blowing in Congress. Earlier this week, the US Senate abandoned an effort to permit Medicaid to be used for abortions for women made pregnant by rape or incest.