States use high court's new ruling Tribunals' decisions based on abortion case

August 08, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- For the first time, the U.S. Supreme Court's new abortion ruling has been used to protect women's right to end pregnancy.

The Oklahoma Supreme Court, in a 5-4 ruling, has stricken from the November election ballot a measure that would have outlawed abortion for most women in that state.

Relying directly on a June 29 ruling by the U.S. Supreme Court, the majority of the state tribunal said the proposed Initiative 349 is "diametrically opposed" to the constitutional right that women still have, and thus cannot even be put to Oklahoma voters.

That decision, reached earlier this week and made available in Washington yesterday, marked the second time in recent days that lower courts have decided cases in direct reaction to the justices' decision five weeks ago.

But the week's other decision had gone the other way, using the June 29 ruling as the basis for allowing the state of Mississippi to start enforcing a strict anti-abortion law already on the books there.

The two rulings indicated that the right to abortion may now differ from state to state, as lower courts apply the justices' new ruling in differing ways to state laws.

In Oklahoma, a group known as Oklahoma Coalition to Restrict Abortion had submitted Initiative 349, to become a state law if the voters approved it this fall.

Its legality was challenged in the state Supreme Court, which told the lawyers involved last month to offer new views on the impact of the U.S. Supreme Court decision in a Pennsylvania case.

The proposed state law would have made abortion a crime, with penalties of up to four years in prison, to perform an abortion except to avoid "grave impairment" of the woman's health, to avoid the birth of a child with a "grave physical or mental defect," or to end a pregnancy resulting from rape or incest.

That measure, the state court majority ruled, "does not allow a woman to make a private decision to obtain an abortion at any time during the pregnancy," either before or after the point of "viability" -- the point at which the fetus, if delivered, would be capable of living outside the woman's body.

By contrast, the state tribunal said, the Supreme Court's new decision permits states to adopt a ban on abortion only after the fetus has become viable.

Before that point, the decision allows a woman "to have an abortion without undue interference by the state."

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