At Last, an Abortion Ruling That Angers Both Sides

ELLEN GOODMAN

July 02, 1992|By ELLEN GOODMAN

Boston. -- What the Supreme Court delivered was a bad-news, good-news, half-empty, half-full cup of decisions. On the one hand, the 5-4 majority opinion written jointly by Justices O'Connor, Souter and Kennedy reaffirmed a woman's right to abortion. On the other hand, they defended the state's right to expand the barriers between a woman and her ability to exercise that right.

This trio of Reagan-Bush appointees described abortion -- better than the court ever has -- as part of the women's-rights movement. ''The ability of women to participate equally in the economic and social life of the nation,'' they wrote, ''has been facilitated by their ability to control their reproductive lives.''

They admitted too that there was no justification for reversing Roe v. Wade, except for the personal ''disposition'' of a new group of justices. To overturn laws every time you change judges would, ''seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a

nation dedicated to the rule of law.'' The Supreme Court of law would be seen as the Supreme Pawns of politics.

But this majority also threw out the ''trimester system'' established in the Roe decision. Instead, it said states could ''regulate'' abortion even in the first trimester as long as they didn't place an ''undue burden'' on the woman.

In the majority view, most of the Pennsylvania restrictions in this case -- a waiting period, a state-written medical lecture and parental consent for minors -- were acceptable. Only the mandate that a woman tell her husband was struck down.

It is no wonder that the pro-choice advocates agreed for once with their nemesis Chief Justice Rehnquist when he said ''The joint opinion . . . retains the outer shell of Roe v. Wade but beats a wholesale retreat from the substance of that case.'' Nor is it any wonder that the pro-life advocates agreed with their new villains, Justices O'Connor and Souter and Kennedy, when the trio said this ruling protects Roe.

The decision muddles old allegiances and muddies political waters. The court didn't hand the pro-life forces the victory they expected after 12 years of loyal Republican voting. Clarence Thomas came as advertised, in favor of overturning Roe. But Justices Kennedy and Souter and O'Connor took a stand against a ban.

Nor did it hand pro-choice forces a decision with the political punch they were looking for. This decision doesn't make abortion illegal. It ''merely'' makes it more and more difficult, expensive or even impossible for poor women, young women and rural women. That's harder to see, harder to feel and may be harder to mobilize against.

Abortion-rights activists are ready to press the Freedom of Choice Act through Congress and onto the president's desk. An expected veto would put President Bush in the spotlight as the person single-handedly denying women the right to choose. Now the court's decision may mute the power of abortion as an overriding campaign issue.

In this climate and this time, it's reasonable to feel relief at the ruling. The court has at least put a floor under the deteriorating right to choose. Laws like those in Louisiana and Utah and Guam are unlikely to be upheld when they came to the court.

The justices said states could not ban abortion, but they said so by one vote, by one justice.

Justice Blackmun, the author of the 1973 Roe decision put it bluntly, ''I am 83 years old. I cannot remain on the court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.''

Ellen Goodman is a syndicated columnist.

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