Appeals court rejects part of Roe vs. Wade Ruling in Pa. could force early high court review

October 22, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A federal appeals court in Philadelphia cast aside a key part of Roe vs. Wade in a new ruling yesterday that would allow many -- and perhaps most -- restrictions on abortion.

In a decision that could all but force the Supreme Court to reconsider the basic outlines of the 1973 abortion ruling, the 3rd U.S. Circuit Court of Appeals used a new constitutional standard to uphold most parts of Pennsylvania anti-abortion laws.

The Circuit Court adopted a view expressed several times by Justice Sandra Day O'Connor instead of the basic approach the Supreme Court took in 1973 and reaffirmed as recently as 1986.

The O'Connor view is that if a state law does not go so far as to outlaw abortion altogether, it will be upheld if the state has any good reason for adopting the law.

The Supreme Court's standard since Roe has been that a state law putting any kind of limit on abortion would be struck down unless the restrictions were necessary to "compelling" state policy.

In practice, legal experts on both sides of the controversy have said, the O'Connor standard would seldom lead to nullification of a state law, while the prior approach almost always led to nullification of state laws regulating abortion.

The Circuit Court declared yesterday that Justice O'Connor's view is now "the law of the land" and so adopted it. The court said it was not reconsidering whether abortion remained a constitutional right, saying that only the Supreme Court can face that issue and has not done so.

The Roe decision had two key parts: It established a basic right to abortion, and it laid down a test for judging whether state laws violated that right. The Circuit Court did not disturb the basic right created in Roe but did reject the Roe test used to weigh when that right is violated.

If lawyers on the losing side of the Pennsylvania case move swiftly, the new case could reach the Supreme Court in time for review during the current court term, which is likely to run until June or early July.

If the court gets the case in time and then agrees promptly to rule on it, the future of Roe vs. Wade would be thrust into the midst of next year's presidential primaries, probably increasing the visibility of abortion as a major issue in the campaign for the White House.

Kate Michelman, executive director of the National Abortion Rights Action League, said of the new decision, "Today, the [Supreme] Court was handed the case it needs to overturn Roe."

She said the Senate's approval last week of Justice-designate Clarence Thomas gave "anti-choice forces . . . undisputed control of the court" and that "the stage is now set for the restructured Supreme Court to overturn Roe vs. Wade and deny the right to choose to American women."

However, Wanda Franz, president of the National Right to Life Committee, said the Circuit Court had upheld only a "moderate law" that "should be acceptable to all but pro-abortion extremists, who believe women are too emotionally fragile to hear both sides of the case before making a decision about abortion."

Garnett Biviano, president of the Pennsylvania Pro-Life Federation, said, "This law is the voice of reason."

The Circuit Court, in applying the O'Connor test to laws passed in 1988 and 1989 by the Pennsylvania Legislature, struck down only one section, a requirement that a woman seeking an abortion must first sign a statement that she has told her husband of her decision.

The Circuit Court said that part of the law posed the "most difficult" test of the O'Connor standard but nullified it, saying that it imposed an "undue burden" on women's abortion rights because women in some marriages "may reasonably fear dire consequences from notifying their husbands."

It went on to say that the state of Pennsylvania did not have a strong enough justification for giving husbands such a role. All that husbands would get from that part of the law, it said, would be a chance to play a role in a decision that the wife "is constitutionally privileged to make on her own for her own reasons."

The court noted that the Supreme Court has never overturned a ruling saying that states could not give husbands an absolute veto of their wives' right to seek an abortion.

The other parts of the Pennsylvania law challenged before the Circuit Court, all of which it upheld, provide that:

* Doctors, before ending a pregnancy by abortion, must tell a woman about the likely age of the fetus she is carrying, the risks of abortion and the risks of carrying the fetus to a live birth.

* Doctors or someone qualified on their staffs must tell a woman the support she can get during pregnancy and after a child is born, and that the father is legally obliged to help support the child.

* A woman seeking an abortion may not obtain one until 24 hours after getting the information doctors or their staff assistants are required to supply.

* Women under 18 must get the consent of one parent for an abortion or go to a court for permission.

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