Court Dodges Direct Ruling on Roe
Justices to hear Pennsylvania abortion case; impact on landmark 1973 law remains unclear
WASHINGTON — IS this the end of the line for Roe v. Wade?
With the announcement Tuesday that the United States Supreme Court will rule on a controversial Pennsylvania law limiting abortion, abortion-rights advocates expect the worst for the landmark case.
Ironically, the court's announcement came on the eve of yesterday's 19th anniversary of the Supreme Court decision which established a fundamental constitutional right to abortion. But even though the court did not say if it would rule explicitly on Roe, an expected decision to uphold the limits on abortion in Pennsylvania would mean Roe is de facto overturned, say lawyers for Planned Parenthood and the American Civil Liberties Union, which represent the plaintiffs in the case. Not so, say others who arg ue that there's plenty of room for the Supreme Court to rule narrowly on the Pennsylvania law without reaching the larger issue of Roe.
"Roe v. Wade is now one of the most ambiguous terms in the English language," says Walter Dellinger, a professor of constitutional law at Duke University. Hewill file a "friend of the court" brief in the case for abortion supporters in Congress. Debate on the future of Roe is filled with semantic arguments. What, for example, does the word "fundamental" mean when abortion is described as a "fundamental right part of a right to privacy, as it was in Justice Harry Blackmun's majority opinion in 1973? "Fund amental rights," says Harvard law professor Laurence Tribe in his 1990 book "Abortion: The Clash of Absolutes," are those that "can be abridged by government only when demonstrably necessary to achieve a 'compelling' objective."
The question, then, is what constitutes a "compelling" objective in the case of abortion.
"There are two competing concepts here," says law professor Michael Gerhardt of the College of William and Mary. "Fundamental rights are competing with compelling state interests. The definition of the word 'fundamental' is key." Regulations allowed
In 1989, the Supreme Court ended 16 years of judicial restraint on abortion by allowing the state of Missouri to impose certain regulations on abortion in the ruling Webster v. Reproductive Health Services.
Though five of the nine justices upheld the Missouri regulations, one of them, Justice Sandra Day O'Connor, upheld them without concluding that Roe should be overruled. So Roe remained in effect. But the ruling sent a signal to all state legislatures that Roe was no longer an absolute shield.
Since then, two new justices selected for their conservative views, David Souter and Clarence Thomas, have replaced two liberals on the bench. Thus, the court appears more poised than ever to further Roe's demise.
The Pennsylvania law contains several provisions, which are waived in cases of medical emergency:
* Women seeking abortion must be presented with information describing the procedure and alternatives. They must also wait 24 hours after counseling before having the abortion.
* Women under age 18 must obtain one parent's consent or judicial waiver.
* Married women must notify their husbands of an intention to abort unless the husband cannot be found or is not the father of the child, a woman fears abuse, or the pregnancy resulted from assault by the husband.
* Abortion is illegal after 24 weeks of gestation, unless necessary to protect the life or health of the mother.
* Doctors must keep detailed records of each abortion, which can be publicly revealed.
All but the spousal notification rule were upheld by the Third Circuit Court of Appeals.
The National Right to Life Committee (NRLC) would not view a Supreme Court decision to uphold the Pennsylvania law as de facto overruling of Roe.
"The Pennsylvania law's provisions, which give an opportunity for a woman to hear both sides, do not directly protect unborn children," says Burke Balch, NRLC's director of state legislative affairs.
Both sides in the Pennsylvania case, each for its own reasons, had asked the Supreme Court to issue an opinion on the validity of Roe as it ruled on the specifics of the Pennsylvania case. But in its announcement Tuesday the court did not address whether it would consider Roe head-on.
Since the Pennsylvania case would not criminalize abortion - a status that Roe undid - the court may sidestep the core issue, say legal scholars. Louisiana, Utah, and Guam have all outlawed abortion in most instances; their laws are heading for the Supreme Court, and will provide a more direct vehicle for ruling on Roe. An election issue
At press conferences Tuesday, abortion-rights advocates seemed frustrated that the court may not overrule Roe with its Pennsylvania ruling. The pro-choice lobby sees the overturning of Roe as inevitable, and it wants an unambiguous Supreme Court statement to galvanize opinion in this election year.
The way the court rules on Pennsylvania "could have a major impact on the presidential race even if the court says as little as possible, because it may make it clear that any national protection of abortion rights will come through the national legislature," says Professor Dellinger. "That means a pro-choice president" would be needed to sign the legislation, since Congress has been unable to override Bush's vetoes.
It also means that the abortion stand of each state and federal legislative candidate has leaped in importance, since the absolute protection of Roe appears already to be history.