End this protracted struggle

December 16, 1992

The Supreme Court has refused to review a lower court ruling upholding Mississippi's abortion control law. The justices obviously agreed with the Fifth Circuit Court of Appeals, which had said the law's waiting period requirement, which was the principal point of contention, was "substantially identical" to Pennsylvania's law. The Supreme Court upheld Pennsylvania's law last summer.

In that ruling, the court said that women have a constitutional right to have an abortion, but states may regulate abortion as long as regulation places no "undue burden" on a woman.

It seems to us that that does not mean a regulation that is not such a burden in one state is automatically not such a burden in another. Maybe Mississippi and Pennsylvania's situations are the same, but that is not always going to be the case.

For example, in a state that is small or has many physicians who perform abortions, a woman does not have to make two long trips or stay overnight in order to satisfy a waiting period requirement.

In those cases such a regulation is probably not an undue burden. But in a large state or one with few such physicians, it would be. We believe the Supreme Court needs to make it clear that every state may not now adopt the Pennsylvania law.

Better still would be a national law that spells out what states may do in regulating abortions in a way that ensures that all such regulations are consistent with Roe vs. Wade and the Pennsylvania case (Planned Parenthood of Southeast Pennsylvania vs. Casey).

In the latter, the court's majority made it clear that state regulations of abortion had to be consistent with the core holding of Roe -- it is the woman's decision, at least until the later stages of pregnancy. It may be that the only way to do that is to ban waiting period laws and similar regulations in every state.

There are probably enough votes to enact such a law in the next Congress. In the outgoing Congress, Democratic leaders did not test sentiment for a Freedom of Choice Act, because of political considerations. The bill came up late in the second year of the Congress, not long before Election Day, so a Republican Senate filibuster seemed likely to succeed. Even had it not, President Bush would surely have vetoed such a bill.

President Bush will be gone next year, replaced by pro-choice Bill Clinton, and if Congress starts the bill through the legislative mill early enough, a filibuster is not going to work.

Absent such a law, not only will many states' existing laws and regulations that are not "substantially identical" to Pennsylvania's have to be tested in the courts, but some states may write new laws whose burdensomeness will take years to prove.

That is unsatisfactory. The American people are tired of this protracted struggle and want it behind them.

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