High Court takes on abortion Pa. case represents a major test of Roe

January 22, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun

WASHINGTON -- The Supreme Court reopened the entire abortion controversy yesterday, agreeing to rule before summer on a major new test of its historic decision in Roe vs. Wade.

Although the court deliberately shied away from promising to decide whether to overrule the Roe decision, its coming ruling in a Pennsylvania case is expected to go far toward settling the fate of abortion rights as a practical matter.

The kind of final decision that is now widely expected in that case -- narrowing the right so that abortions are allowed only in the rarest emergency situations -- would shift much of the heated controversy to the political arena, to Congress and to state legislatures.

Even if the court struck down abortion rights altogether, federal and state legislators still could act to keep abortion as an option -- as Maryland's General Assembly has done. Taking abortion out of the U.S. Constitution would not take away from states their traditional power to create rights themselves.

Abortion rights advocates reacted to the court's action by saying that Roe was already dead and that their lawyers had no hope of salvaging anything significant out of the new case. Anti-abortion groups hailed the court's action, saying the court could -- and should -- use the occasion to take abortion rights completely out of the Constitution.

The timing of the court's action was a coincidence: It came, apparently unintentionally, on the eve of today's 19th anniversary of Roe vs. Wade, and near the start of the presidential election campaign in which abortion will be a major issue.

As the presidential primaries occur, the court will be moving ahead with its review of abortion rights, with a hearing probably in late April -- before the final primaries. A ruling is expected in late June -- on the eve of the nominating conventions.

Dick Moe, a Washington lawyer and adviser to the Democratic presidential campaign of Arkansas Gov. Bill Clinton, said that it will be "a major, forcing political event" for the court to be 'N preparing a major ruling on abortion this year.

The issue, he added, will be "put right smack in the middle of the debate" among those seeking the presidency."

The court acted yesterday on two appeals from Pennsylvania -- a state where strongly anti-abortion majorities in the legislature have been trying for 17 years to restrict the right to end pregnancies. Two of those laws are at stake now.

One of the new appeals urged the court to use the Pennsylvania case to make a broad statement as to whether Roe vs. Wade remains the law of the land; the other asked the court to rule that states now are to have a much freer hand to act to stop abortions.

The court, in a gesture that it does not often use, rewrote the questions it said it would decide in the case. Those sounded as if the justices would focus only on the specifics of the Pennsylvania law. That may have been only a surface indication, however.

Kathryn Kolbert, an American Civil Liberties Union lawyer from Philadelphia who will be arguing the case for five abortion clinics and a Pittsburgh doctor, said she did not think the court's rewriting of the issues was significant. The core question she had posed -- whether Roe vs. Wade had already been overruled, by implication, by Supreme Court rulings on abortion since 1989 -- "was a little too direct; it made them uncomfortable," she said.

But James Bopp Jr., a Terre Haute, Ind., lawyer and general counsel of the National Right to Life Committee, said the court had recast the questions "because the ACLU had presented an abstract political question, rather than a straightforward legal question the court could answer."

He added: "This is all that this is, and it does not limit their review and does not take Roe off the table."

The court's action of moving into the new case on what seemed to be a narrow approach did serve as a reminder of what had happened in 1970, when the Roe vs. Wade case, and a companion case, arrived at the court.

Then, the two cases posed fairly narrow issues. But when the justices finally decided those cases Jan. 22, 1973, they did so in a sweeping ruling that for the first time declared abortion to be part of a basic "right of privacy" broadly protected by the Constitution itself.

The Pennsylvania case could give the court an opportunity for its first-ever ruling to strike down, in whole or in major parts, a constitutional right it had itself established.

Yesterday's order did contain a hint that the case could be used as a basis for a much more sweeping ruling, with constitutional declarations well beyond the minimum needed to uphold or strike down the two state laws at issue.

The justices said that the core issue before them was whether the 3rd U.S. Circuit Court of Appeals in Philadelphia had committed an "error" by upholding in November all but one clause in two tough anti-abortion laws.

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