The U.S. Supreme Court refused last week to retreat from its landmark 1973 decision that made abortion a routine medical procedure and one of the most divisive issues in American society.
Despite the fact it struck down six provisions of a Pennsylvania statute, the high court created no new law in its latest abortion ruling, Thornburgh v. American College of Obstetricians. But two important elements do emerge.
One was the sweeping language affirming a woman`s right to choose abortion, free from government interference. And the other was the closeness of the vote.
”Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government,” Justice Harry Blackmun declared last week in the majority opinion signed by four other justices. ”That promise extends to women as well as to men.”
Blackmun, the author of the 1973 Roe v. Wade decision, then proclaimed:
”Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, 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.”
It was too early to assess the ruling`s impact on new efforts to restrict abortions. For nearly 10 years Congress, unable to muster the votes for a constitutional amendment outlawing abortion, has sharply curtailed the funding of abortions for indigents through Medicaid.
In Massachusetts, the state legislature recently voted to place a constitutional amendment on the November ballot that would ban abortions altogether if the Supreme Court overrules Roe. The amendment also would cut off state funding of abortions and allow the legislature to prohibit private insurance coverage of abortion.
Oregon and Washington voters also are expected to confront similar abortion funding measures this fall. In California, where the state Supreme Court has mandated abortion funding, Chief Justice Rose Bird has been targeted for defeat by anti-abortion groups.
In last week`s decision the high court left little room for state and municipal regulation during the first 12 weeks of pregnancy; under the Roe decision the states could regulate abortion to protect a woman`s health only in the second 12 weeks of pregnancy.
As it did in Roe, the court also refused to recognize the unborn fetus as a person, entitled to the full protection of the Constitution.
Justice Blackmun was able to assemble the majority with the votes of three stalwarts from the 1973 decision–William Brennan, Thurgood Marshall and Lewis Powell. Casting the fifth vote was Justice John Paul Stevens, who came to the court in 1975. The comfortable 7-2 vote in Roe had eroded to a bare 5-4 majority in Thornburgh.
The most noticeable dropout from Roe was Chief Justice Warren Burger, now siding with the dissenters and scolding his brethren for seeming to endorse abortion on demand. The other member of the Roe majority, Potter Stewart, retired in 1981 and was replaced with Sandra Day O`Connor, a supporter of state abortion restrictions and a dissenter in Wednesday`s ruling.
But only two justices–Byron White and William Rehnquist–remained unalterably opposed to Roe`s recognition of a woman`s right to an abortion. White`s dissenting opinion reflected the familiar legal arguments opposing abortion and the court`s abortion rulings from Roe to date.
At the outset White said the court had created a right not specifically recognized in the Constitution and, in effect, appeared to impose ”its own controversial choices of value upon the people.”
White also spoke of the fetus as ”an entity that bears in its cells all the genetic information” of a human and argued there was ”no nonarbitrary line” separating a fetus from a child or an adult.
Noting the current controversy over abortion, White observed: ”And again, 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.”
For seven months Blackmun, a reputed workaholic and perfectionist, toiled over the Thornburgh opinion. Both the Pennsylvania case and a companion appeal involving an Illinois statute, since amended, posed serious procedural problems that made them poor candidates for landmark legal status. Then in late April the high court appeared to confirm these doubts when it ruled that the Illinois case didn`t belong there.
The Pennsylvania case focused initially on a dispute over an injunction. A U.S. appeals court, in enjoining enforcement of the abortion law, invalidated several of its provisions, even though there had been no trial court ruling. The state`s attorney general then appealed to the Supreme Court. These provisions, briefly, required physicians to inform patients of the possible ”detrimental” effects of abortion, the ”probable gestational age” of the unborn child, the father`s obligation to support the child and of agencies offering alternatives to abortion.
Physicians also were required to file detailed reports on each abortion, which were subject to public inspection, and in late abortions to make every effort to save the life of an unborn child.
Only three years ago the high court struck down similar regulations when confronted with its last major challenge to Roe in an Akron case. By then the Reagan administration, an outspoken foe of abortion, had joined the fray.
Last week`s ruling drew an immediate response from both sides of the abortion controversy. The American Civil Liberties Union described it as ”a powerful warning” to states that efforts to pass laws infringing on a woman`s right to abortion ”are in vain.”
Rep. Henry Hyde (R., Ill.), author of the Hyde Amendment restricting Medicaid funding of abortions, called the ruling ”tragic.” But Hyde was encouraged by the closeness of the vote.
”I have always felt that a constitutional amendment was the only way to reverse Roe,” he said. ”As the court matures in its thinking and begins to digest the national experience of 1.5 million abortions a year, the numbers are getting closer. Which will come first–a constitutional amendment or a new justice? I think a new justice.”
