With the drums of combat in Buffalo between abortion opponents and supporters sounding ominously in the background, the Supreme Court tomorrow will take up a case that offers it the opportunity to overturn Roe vs. Wade, the landmark 1973 abortion rights decision.
Six years ago this spring, the court overturned a somewhat similar Pennsylvania law. In so doing, Justice Harry Blackmun reaffirmed what he had written in Roe. A woman's right to an abortion is fundamental and constitutional, involving individual liberty, and no state may regulate that except for a compelling state interest.
Only last week a federal appeals court in San Francisco, stating that Roe's principle is still the law of the land, overruled a Guam anti-abortion law. But does Roe prevail? The new Pennsylvania law is back before the Supreme Court because an appeals court in Philadelphia ruled last year that while the Supreme Court has not expressly said so, its tinkering with Roe has in effect undone it: Women now have only the right to object to laws that place an undue burden on their decision regarding abortion. The state's goal must be "reasonable," but not "compelling."
That's quite a difference. So much so, in fact, that many pro-choice leaders say they would like to see the court go ahead and overturn Roe explicitly, rather than just deal narrowly with counseling, spousal notification, parental consent and the other elements of the Pennsylvania law. The present court might go to the extreme of flatly overturning Roe. It has been asked to by the Bush administration. In upholding Roe in the earlier Pennsylvania case, Justice Blackmun spoke for a bare majority of five justices. Three of those are now retired, replaced by one Ronald Reagan and two George Bush appointees. Roe vs. Wade, which was decided on a 7-2 vote, could very well be overturned on a 7-2 vote, only 19 years later. There may be a precedent for such judicial volatility, but we can't think of one that directly involves so many individuals and so much political passion.
Perhaps this won't happen. Perhaps even justices who are troubled with Roe will, when the moment of truth comes, have second thoughts. We hope so. As we contemplate the events in Buffalo, and recall those like it in Wichita last year that got so ugly, and as we anticipate the referendum fight in Maryland over this state's new abortion laws (more or less codifying Roe, in anticipation of its fall), and as we see the sort of harsh and unhealthy laws like Guam's, Louisiana's and Utah's (criminalizing almost all abortions) -- as we add all this up, we are reminded anew just how wise Roe vs. Wade was in striking a humane balance between a woman's rights, society's rights and the rights of the unborn. If and when Roe goes, no one can predict the political turmoil and individual grief that will be the direct result.