New Tests Ahead For Roe Decision
WHILE the nation continues to debate the broad implication's of last week's Supreme Court rulings on abortion, new legal tests are on the horizon for this emotion-clad and controversial issue. These involve the right of the federal government to withhold funds from federally financed family planning programs that provide abortion information and the constitutionality of state laws that all but ban abortion, levying heavy penalities on those who perform one.
So-called right-to-life groups see these challenges as leading to a final downfall of Roe v. Wade, the landmark 1973 decision of the Supreme Court that allows abortion under the regulation of a structured trimester arrangement. Under Roe, abortion on demand, in effect, is allowed during the first three months of pregnancy. After that, states may set specific regulations regarding conditions for abortion.
These things seem probable in the short range:
Roe won't fall quickly, because of the lack of a case that might not pass the constitutional test.
So far, 350 anti-abortion bills have been introduced in more than 40 state legislatures. The toughest - and those that go to the heart of Roe - have either failed with lawmakers or have been struck down by gubernatorial veto. A Louisiana law, which would directly challenge the concept of Roe, hangs in the balance.
Most state proposals exempt victims of rape or incest and allow abortion where the mother's life is in danger.
The high court will continue to tighten the reins on abortion but appears to lack the votes to ban it completely.
At this time, only Associate Justice Antonin Scalia seems determined to strike down Roe. Fellow conservative Associate Justice Sandra Day O'Connor had basically upheld state laws restricting abortion, but she opposes statutes that place an undue burden on the right to have an abortion.
Justice O'Connor's position could be a key factor in the ultimate disposition of Roe. The court's only female justice has shown concern for the plight of women, particularly those who are poor and from minority groups.
She voted last week to uphold abortion laws in Minnesota and Ohio that require teenagers to notify parents of a planned abortion. The jurist took exception, however, to the part of a Minnesota statute that required two-parent notification without the benefit of judicial bypass, which would allow a court to permit a teenage abortion in extraordinary circumstances.
Justice O'Connor's reference to avoiding ``unduly burdening the minor's limited right to obtain an abortion'' suggests that she might be reluctant to completely destruct Roe, where the justices declared abortion to be a fundamental constitutional right. Subsequent rulings have modified this stance. Last year in a Missouri case, the justices referred to abortion as a ``liberty interest,'' which had to be balanced against other state interests.
Abortion, along with flag burning, will be a major campaign issue in elections later this year.
Pro-choice groups will line up against anti-abortion forces in congressional contests in particular. This controversy could be upstaged only by concerns about taxes and the economy.
Abortion could also spill over into the presidential campaign of 1992. President Bush, a likely candidate for reelection, opposes abortion but may be forced to take a specific position on Roe. Mario Cuomo, his possible Democratic opponent, is a Roman Catholic who personally opposes abortion but has taken a pro-choice stance for others.
Next term the Supreme Court will rule on the constitutionality of a government ban on abortion counseling at publicly funded family-planning clinics across the United States. Bush administration regulations, if upheld, would deny funds to groups that give advice on abortion.
Federal courts in Boston and New York have split on this issue, with the US Court of Appeals for the First Circuit in Boston calling the regulations an unconstitutional intrusion on reproductive and free-speech rights.