A victory for Roe

KATHLEEN M. SULLIVAN

July 01, 1992|By Kathleen M. Sullivan

WHEN Roe vs. Wade came down in 1973, holding that women had a fundamental right of access to abortion, its opponents launched two offensives that persist to this day.

The first was to appoint to the Supreme Court conservative justices who would overrule Roe, leaving the controversy to the winds of politics rather than law. The second was to enact legislation cutting back on abortion rights as much as possible.

Roe opponents have won some skirmishes, but so far they are still losing the war. For the anti-abortion movement, Monday's Supreme Court decision in the Pennsylvania abortion case was a rout.

In Planned Parenthood vs. Casey, the court upheld some but not all provisions of a law designed to make obtaining an abortion more time-consuming and expensive but not to prevent or prohibit it.

The court upheld a law requiring doctors to give a woman seeking an abortion a litany of facts about her fetus and about the alternatives to abortion -- a warning about the consequences of exercising her rights.

It also upheld a requirement that a woman wait 24 hours after hearing this information before going ahead with an abortion, a requirement that a detailed record of the abortion be kept and a requirement that when a minor seeks an abortion, her parents or a court be notified.

But the court drew the line at a requirement that a married woman certify to her doctor that she has told her husband she is seeking an abortion. It held that, in the late 20th century, husbands are not their wives' keepers and may not be given veto power over pregnancies.

True, this holding cuts back on some post-Roe decisions, giving the states greater leeway than they have had in recent years to impose added delay, cost, discomfort and inconvenience on a woman's effort to obtain an abortion.

But, crucially, the court ringingly reaffirmed the core of Roe. It reaffirmed that the ultimate decision-making authority about whether to continue or end a pregnancy must rest with a pregnant woman, at least throughout the greater part of the pregnancy before the fetus is "viable" -- capable of living outside the womb.

The court deemed this decision a matter of protected constitutional liberty -- the freedom to make our most personal and intimate choices for ourselves rather than have them dictated to us by the state.

If Roe was thus reaffirmed, how did the court manage to uphold so much of Pennsylvania's law?

It split the world of abortion regulation in two. After Monday's decision, abortion still may not be made a crime. No woman seeking an abortion may be sent to jail or relegated to butchery in back-alley botch jobs.

Nor may a state place any other "undue burden" or "substantial obstacle" in the path of a woman seeking an abortion.

But if criminal penalties and husbands' vetoes are out, states are now free to impose some hassles and headaches on women seeking abortions. Future cases will turn on the degree of burden imposed -- has the state made abortion nearly impossible or merely less convenient?

But the decision ties the hands of any state that might otherwise have tried to eliminate abortion altogether.

At least for now. At least as long as Justice Harry A. Blackmun, 83, remains on the court.

For the reaffirmation of Roe, it is crucial to note, was decided by a vote of only 5-4. Justice Blackmun, author of the landmark Roe decision, has endured hate mail and buckshot for his efforts.

Term after term during nearly 12 years of the Reagan and Bush administrations, he has waited to see whether new appointments to five vacancies would undo his handiwork.

Writing separately, Justice Blackmun praised the "act of personal courage and constitutional principle" embodied in the joint opinion of Sandra Day O'Connor, Anthony Kennedy and David Souter, which was crucial, along with his and Justice John Paul Stevens' votes, to the outcome.

But in an extraordinary personal afterword, Justice Blackmun noted: "I am 83 years old. I cannot remain on this court forever, and when I step down, the confirmation process for my successor may well focus on the issue before us today."

In other words, Roe and its vision of personal liberty is but one vote away from the overruling its opponents have long sought.

The four dissenters (who agreed with its result insofar as it upheld the Pennsylvania restrictions) were Chief Justice William H. Rehnquist and Justice Byron White, the original dissenters in Roe, as well as Justice Antonin Scalia and the newest justice, Clarence Thomas.

These four justices would overrule Roe root and branch and remit abortion regulation entirely to the political process, accepting as constitutional whatever patchwork of results might follow. And they would need only one vote to do it.

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