The law of the land

January 23, 1992

From 1973 to 1989, Roe vs. Wade was the law of the land. That landmark case stated that there is a constitutional right to privacy which "encompasses a woman's decision whether or not to terminate her pregnancy."

That right was, in effect, unrestricted in the first trimester of pregnancy. But the court said the state had the right to regulate abortion to protect maternal health from the beginning of the second trimester of pregnancy until the fetus becomes viable, at about the beginning of the third trimester. And it said that after viability a state may prohibit abortions, except those necessary to preserve the life and health of the mother.

Though often attacked legally and politically, and though slightly modified by successive Supreme Court decisions, it was not until 1989 that the high court truly undercut Roe. Then a five-justice majority upheld Missouri abortion laws in conflict with Roe in a way that invited other states to go beyond Roe. Four justices said in that case -- Webster vs. Reproductive Health Services -- that Roe should be reversed.

In several states already, rather extreme statutes have resulted. We would not necessarily call Pennsylvania's new laws extreme, relative to some in other states. But they are unfortunate. They clearly were intended to deter if not intimidate women seeking to exercise their Roe rights. Pennsylvania's laws are important now, because on Tuesday the Supreme Court agreed to review them this term.

The Pennsylvania laws require a married woman to notify her husband of her intent to get an abortion; they require minors to get a parent's or a judge's permission; they require women to submit to anti-abortion counseling and to wait 24 hours before acting; they require physicians in private practice to notify public officials of abortions performed and provide records. Only six years ago the Supreme Court ruled very similar Pennsylvania laws unconstitutional. Why would it reconsider them so soon thereafter? The answer to that can only be because anti-abortionist (or at least anti-Roe) justices who were in a minority in 1986 know they are in the majority now.

Three of the 1986 majority have retired and been replaced by justices known to be or believed to be anti-Roe. Having invited states in its Webster decision to ignore Roe, the court now seems poised to state unequivocally what has long been apparent -- that Webster has become the law of the land. The next question to be answered is just how rigid may state laws be in the eyes of the Supreme Court's new, post-Webster majority? That answer could come by this summer.

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