WASHINGTON -- The chances for an early Supreme Court test of the future of the Roe vs. Wade abortion ruling rose yesterday as the state of Pennsylvania said it would go directly to the nation's highest court with a new appeal.
State Attorney General Ernest D. Preate Jr. said in a statement in Harrisburg that he would ask the Supreme Court in that appeal to uphold a clause in a state law that would require women seeking abortions to tell their husbands of their plans.
That clause was the only provision struck down Monday by a three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia, which upheld all other clauses in two state anti-abortion laws, including a 24-hour waiting period for all women seeking abortions.
Even if only a single clause in the state law is tested before the Supreme Court, the justices might find that they cannot rule on even that provision without reconsidering Roe vs. Wade. That is because of the reasoning the Circuit Court used throughout its opinion, which cast aside one of the basic lines of reasoning in the Roe decision.
The state, by taking the dispute directly to the Supreme Court, will bypass any further review of the state laws by the Circuit Court. The state could have asked the full 11-judge Circuit Court to reconsider the decision by the three-judge panel.
The state's announcement yesterday means that the case could be placed before the Supreme Court in time for review during its current term. If the court agrees promptly to rule on the case, a final decision could come before summer, which would make the abortion issue more visible in next year's presidential campaign.
Meanwhile, lawyers for five clinics and a doctor who had challenged all parts of the 1988 and 1989 Pennsylvania laws said they had not decided on their next legal step. They expect to make a decision by early next week, according to the American Civil Liberties Union, whose lawyers represent the clinics and doctor.
The state's decision to move on to the Supreme Court could put pressure on the clinics' lawyers to defend Roe vs. Wade by pursuing their own prompt appeal there. The White House, if it follows its practice in key abortion cases, would be likely to ask the court to use the Pennsylvania case to strike down the Roe ruling.
The Pennsylvania case is the furthest advanced in the federal courts of several cases that could directly challenge to the Supreme Court's willingness to continue applying in full its 1973 Roe vs. Wade decision.
Pennsylvania officials said yesterday that they thought the justices could uphold the husband-notification clause without overruling Roe vs. Wade, but they indicated that the state will ask that Roe be overturned if that is what it takes to uphold the Pennsylvania law in its entirety.
The Pennsylvania case led the Circuit Court to issue a sweeping decision concluding that a majority of the Supreme Court no longer supports the part of the Roe ruling that said no anti-abortion law could be upheld unless it passed the strictest constitutional scrutiny.
Instead of that approach, the Circuit Court adopted a more relaxed standard suggested by Justice Sandra Day O'Connor, saying that all abortion restrictions should be upheld unless they absolutely ban abortions or come close to that.