Strongly reaffirming its landmark 1973 abortion ruling, the U.S. Supreme Court on Wednesday struck down state regulations that would ”intimidate women” from ending unwanted pregnancies.
Dividing 5 to 4, the high court held that certain provisions of a Pennsylvania law, based on a model statute developed by the Chicago-based Americans United for Life, violated a woman`s fundamental right to an abortion.
The decision was a major setback for the Reagan administration, which had urged the high court to overrule Roe v. Wade, the 1973 ruling that ended most state restrictions on abortion.
For 13 years, abortion opponents have sought unsuccessfully to blunt the impact of the Roe decision through action in state legislatures. But the high court, as it did Wednesday in the Pennsylvania case, has refused to let states and cities enact restrictive laws that would discourage a woman and her physician from seeking an abortion.
Wednesday`s decision has again prevented anti-abortionists from moving through the states and again showed that getting the Supreme Court to reverse itself will be a difficult task since there have been only two new justices since 1973. Meanwhile, congressional efforts to overrule Roe with a constitutional amendment have failed.
The close vote was the only encouraging sign for abortion opponents, who noted that a justice`s retirement might make the difference. Roe v. Wade was decided by a 7-2 vote.
The ruling is expected to have an immediate impact on Illinois` latest abortion law, which has been subject to a temporary restraining order in federal court in Chicago since last June, pending the outcome of the Pennsylvania case.
Colleen Connell of the American Civil Liberties Union in Chicago said the Illinois law has almost identical language in its provisions on informed consent and late abortions.
”Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy,” Justice Harry Blackmun declared Wednesday in the majority opinion, ”than a woman`s decision, with the guidance of her physician and within the limits specified in Roe, whether to end her pregnancy.
”A woman`s right to make that choice freely is fundamental,” continued Blackmun, the author of Roe v. Wade.
The provisions at issue made physicians liable to criminal sanctions and loss of their licenses if they failed to comply with extensive ”informed consent” and reporting requirements or did not take necessary measures to preserve the life of a viable fetus.
The four dissenting justices, in sharply worded opinions, accused their colleagues of overreaching and deciding issues that were never ruled on by a trial court. Justice Sandra Day O`Connor called the decision ”bad
constitutional law and bad procedural law,” which she said served as a
”straitjacket” for the 50 states.
Chief Justice Warren Burger, who had joined the majority in the 1973 decision abortion, said the ruling Wednesday ”plainly undermines” the court`s previous rejection of abortion on demand.
And Justice Byron White charged that the majority was reading into the Constitution its own ”value preferences.”
”The fact that many men and women of good will and high commitment to constitutional government place themselves on both sides of the abortion controversy strengthens my own conviction that the values animating the Constitution do not compel recognition of the abortion liberty as
fundamental,” White said.
The fourth dissenter was Justice William Rehnquist, who signed the White and O`Connor opinions.
Immediately after the Pennsylvania law was enacted, physicians and others sought a preliminary injunction from a federal court to halt its enforcement. Unsuccessful in this effort, they went to the U.S. Court of Appeals, which invalidated several provisions, based on the Supreme Court`s 1983 abortion decision in an Akron case, and ordered the trial court to rule on the other provisions in the law.
Although the Supreme Court traditionally refuses to hear cases where there is no final judgment, the majority emphasized that this was not a binding rule and cited the federal government`s seizure of the nation`s steel mills in 1952 as a precedent. In the steel case, the high court ruled that President Harry Truman`s seizure order, to prevent a steelworkers strike, was unconstitutional.
Blackmun explained Wednesday that ”when the unconstitutionality of a particular state action under challenge is clear, a federal court need not abstain from addressing the constitutional issue pending state-court review.” Since its 1973 decision, Blackmun said, ”states and municipalities have adopted a number of measures seemingly designed to prevent a woman, with the advice of her physician, from exercising her freedom of choice.”
Yet, Blackmun emphasized, ”the constitutional principles that led this court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of woman`s right to decide whether to end her pregnancy.”
The court ruled 13 years ago that states could not interfere with the abortion decision of a woman and her physician during the first three months, or trimester, of pregnancy. But in the second trimester, the court said, states could regulate where abortions are performed. Only in the last trimester, however, could the state restrict abortions unless the mother`s life or health were at stake.
Since 1973 the high court has refused to expand state authority to regulate abortions. Before then only a few states had liberalized abortion laws, and the procedure was limited to cases where a mother`s life was endangered by pregnancy.
In Congress, efforts to approve a constitutional amendment outlawing abortion have stalled. However, Rep. Henry Hyde (R., Ill.) led a successful drive to pass legislation in 1976 that barred the use of Medicaid funds for abortions, except to save a mother`s life. The Supreme Court later upheld the Hyde Amendment. The Department of Health and Human Services reported 874 Medicaid abortions in fiscal 1985, the last available data.
”It`s tragic that 5-4 decisions can mean whether a viable baby is permitted to live or not,” Hyde said Wednesday after the ruling was announced. ”I have always felt that a constitutional amendment was the only way to reverse Roe v. Wade.”
Noting that Roe was a 7-2 decision, Hyde pointed out that the abortion vote was getting closer. ”Which will come first: a constitutional amendment or a new justice?” Hyde asked. ”I think a new justice.”
These are the abortion regulations invalidated Wednesday:
— Before a woman gives her consent to an abortion, she must be told of potential ”detrimental physical and psychological effects” of the procedure; the ”probable gestational age” of the unborn child; the fact that medical assistance benefits may be available for prenatal care, childbirth and neonatal care; that the father is liable for child support.
— Physicians must report abortions performed after the first trimester, including the age, race, marital status, number of prior pregnancies; the basis for determining whether the fetus was not viable; and the method of payment. These reports were to be made available for public inspection within 15 days of receipt.
— In abortions where the fetus is viable, physicians must exercise the same degree of care as if the child were intended to be born. At the same time the abortion technique should provide ”the best opportunity” for the unborn child to be aborted alive unless it poses ”significantly greater medical risk to the life or health of the pregnant woman.”
