Yesterday, for the sixth time in a decade, the Supreme Court upheld Roe vs. Wade. The court said specifically and repeatedly that was what it was doing, even while changing a basic element of Roe and approving state abortion regulations that most pro-choice advocates oppose.
The 1973 Roe decision said a woman's right to an abortion was so fundamental that it could only be regulated if a state had a "compelling interest" in so doing. It said a state could do almost nothing in the first three months (trimester) of a pregnancy and little in the second -- and certainly not prohibit abortions. In the last trimester, after a fetus was capable of living outside the womb, a state could be much more restrictive.
The opinion reaffirmed that a state has no interest strong enough to allow it to ban abortions prior to the viability of a fetus but could impose regulations on a woman seeking abortions at any stage of pregnancy if the regulations did not put an "undue burden" upon her right to decide for herself, and so long as the state had merely a "valid purpose" -- which in law is less than a "compelling interest."
So, in the case before it, the court ruled that Pennsylvania could require women to be "counseled" about abortion and alternatives to it and force them to then wait 24 hours before having an abortion; and it could require detailed public records to be kept by those who perform abortions, and it could require minors to get parental or judicial consent for an abortion. All this is pre-viability. After viability, states could be much more restrictive, even to the point of forbidding some abortions.
But that was also allowed under Roe. The more troubling part of the decision was the conclusion that a waiting period is not an undue burden. It clearly is. For some women, it certainly is a "substantial obstacle to a woman's effective right to elect the procedure," which is another way the court defined "undue burden" yesterday. Think of a woman in rural or small town Pennsylvania who has to travel to a distant city for a safe, professional abortion. The waiting-period law means she has to spend more money and time and, often, endure anti-abortionist harassment not once but twice.
This decision was inevitable. Justice Sandra O'Connor, one of the authors of the opinion, has been advocating undue-burden analysis so persuasively for a decade that some lower-court judges have adopted it as the law of the land (which it wasn't HTC but now is). Justice Harry Blackmun, author of Roe, lauded Justice O'Connor and her co-authors, Justices Anthony Kennedy and David Souter, for yesterday's opinion, which he and Justice John Paul Stevens joined. For him, as for us and many other supporters of Roe, far more troubling than this opinion's weakening of a woman's right to an abortion is the fact that four of the nine members of the Supreme Court said yesterday they would not revise Roe: They would overturn it.