Bad Law, Wise Justice

JAMES J. KILPATRICK

July 02, 1992|By JAMES J. KILPATRICK

Washington. -- The decision may not have been ''correct,'' and it may not have satisfied either side of the controversy over abortion, but Monday's opinion from the Supreme Court was essentially wise. Given the circumstances, that is enough to ask.

By a vote of 5-4, the court upheld the basic ruling of Roe v. Wade in 1973: Up to the point of viability of a fetus, a woman has a right to an abortion. Her freedom in this regard is a part of the fundamental liberty that no state may deny to its citizens.

Having said that, the court went on to rule that short of imposing an absolute ban on abortions, the states retain extensive legislative power in the field. Specifically, in this case, Pennsylvania imposes no ''undue burden'' upon women by requiring various constraints and delays.

This was pragmatic jurisprudence, which may be the best kind of jurisprudence. The court drew a line down the middle. The decision will not satisfy extremists on either side.

Those who regard abortion as ''murder'' will not be appeased by the legislative powers accorded to the states. Those who advocate unfettered ''freedom of choice'' may be disappointed also.

Monday's decision on abortion will evoke memories of the high court's long struggle with segregation. The 14th Amendment of 1868 laid down two prohibitions upon the states: They could not deprive any person of liberty without ''due process of law.'' They could not deny any person within their jurisdiction ''the equal protection of the laws.''

At the time the states ratified the 14th Amendment, no one imagined that it was intended to prohibit segregated schools. Long after adoption of the amendment, states both North and South continued to operate separate systems. The District of Columbia itself, the very seat of national government, maintained segregation.

Even so, in one case after another, the Supreme Court chipped away at the doctrine of ''separate but equal.'' At last, in 1954, came the landmark decision that reinterpreted ''equal protection'' and set in motion profound changes in American life. The court's opinion was widely denounced as a terrible piece of constitutional law. Indeed it was, but if it was bad law, it was wise justice.

In the same fashion, no one imagined in 1868 that the constitutional concept of ''liberty'' could embrace a woman's right to an abortion. Virtually all the states treated abortion as a crime. The states had abundant power to regulate sexual practices. This was settled law.

Even so, little by little, case by case, the high court began to chip away. The Griswold case of 1965, for one example, held that Connecticut could not make it a criminal offense to dispense contraceptives. Old prohibitions on free speech began to fade. The Stanley case of 1969 held that Georgia could not make it a crime to watch pornographic movies in one's home. In one way or another, a new right of privacy began to emerge.

Thirty-eight years after Brown v. Board of Education, it would be now regarded as unthinkable for the Supreme Court to overrule that decision. Two generations have grown up with a 14th Amendment right to attend desegregated schools.

This same consideration figured significantly in the court's decision on Monday. Roe v. Wade was bad law but sound justice. In the ensuing 19 years, millions of women have obtained abortions in the certain knowledge that they were doing nothing unlawful. Flatly to overrule Roe v. Wade would create political and social turmoil, and it would significantly weaken the court's image as a steadfast institution.

Monday's case brought a revealing statement from Justice Harry Blackmun, author of Roe v. Wade in 1973. The definition of liberty then established now hangs ''by a single vote.'' He is 83. ''I cannot remain on this court forever.'' When Justice Blackmun goes, Roe v. Wade could go with him, but I don't believe this will happen. A limited right to an abortion has now been reaffirmed. That right is here to stay.

James J. Kilpatrick is a syndicated columnist.

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