Holding Firm on Abortion

By WALTER ISAACSON

The Supreme Court solidly supports a woman's right to choose

These cases come to us a decade after we held in Roe vs. Wade that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy. Legislative responses to the court's decision have required us on several occasions, and again today, to define the limits of a state's authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution.

At the beginning of his most important majority opinion, Justice Lewis Powell noted the charged political atmosphere surrounding the question the Supreme Court was addressing. Ever since the court declared that women have a constitutional right to an abortion, no other social issue has so sparked public passions, pervaded state and national campaigns, and dominated the deliberations of Congress and legislatures. Laws designed to chip away at that right have been passed in at least 22 states, and antiabortion advocates have harbored hope that the high court might some day reverse itself. But in a decisive set of opinions handed down last week, filled with forceful phrases that seemed addressed to the controversy in the country as well as in the courts, a clear majority of the Justices roundly reaffirmed the landmark 1973 decision as the law of the land.

The practical effect of the current decisions will be to strike down almost all the various constraints that states have placed on abortion rights. These include: rigid rules that minors obtain the consent of their parents, requirements that abortions after the first three months of pregnancy be performed in full-service hospitals, mandatory waiting periods after a woman has requested an abortion, and required counseling designed to discourage abortions. The court let stand a requirement that pathology reports be made following abortions and that two physicians be present at abortions conducted after the sixth month of a pregnancy. Both are relatively minor restrictions: pathology reports cost about $20 apiece, and less than 4% of the nation's 1.5 million abortions each year are performed after the sixth month.

"This is a great victory, a major victory," declared Jane Gruenebaum of the National Abortion Federation. Much to the relief of the "prochoice" forces, the decision shifts the battleground over abortion away from various state legislatures where "prolife" activists had carried their crusade. Planned Parenthood's president Faye Wattleton declared, "The decisions effectively remove the threat that has hung over the continuation of abortion services."

For the right-to-life movement, the rulings were a dispiriting defeat. "Now the court is virtually promoting abortion," said Paige Cunningham of the Americans United for Life Legal Defense Fund. President Reagan, whose Administration had argued before the Supreme Court on behalf of the abortion restrictions, expressed his "profound disappointment." The President supports a pro-life bill sponsored by North Carolina Senator Jesse Helms and a constitutional amendment to ban abortion sponsored by Republican Senator Orrin Hatch of Utah and Democrat Thomas Eagleton of Missouri. Both measures are expected to be debated by the Senate this month.

The most important of last week's rulings involved an ordinance passed by the city council of Akron, Ohio, which has served as a national model for antiabortion legislation. Its requirement that abortions after the first three months, or trimester, of a pregnancy be performed in a hospital seemed to conform to the Roe vs. Wade ruling that the state can make regulations that are "reasonably related" to the health of the woman after the first trimester. But the court, citing advances in medical technology, ruled that the abortion method known as dilatation and evacuation "may be performed safely on an outpatient basis in appropriate nonhospital facilities" during the early part of the second trimester. Thus there is no longer any constitutional reason to require that this procedure be performed in hospitals rather than in the nation's approximately 400 abortion clinics.

The Akron law, like those in 15 states, also established detailed requirements for informing a woman of the physical development of the fetus and the potential medical and emotional factors that might affect her if she has an abortion. The court ruled that requiring this type of "informed consent" is unconstitutional. "Much of the information required is designed not to inform the woman's consent but rather to persuade her to withhold it altogether."

In deciding whether minors must have the permission of a parent before getting an abortion, the court trod a fine line, rejecting the standard used in the Akron ordinance but letting a Missouri statute stand. The distinction the court made is that parental-consent laws must be flexible enough to allow a minor to show a court that she is mature enough to make the decision on her own or that the abortion is in her best interests. Antiabortion forces are sure to press for legislation that meets this definition. Nine states currently have some form of parental-consent rule, and eleven others require parental notification. The impact can be dramatic. In Minnesota, according to Planned Parenthood, abortions for minors dropped by one-third after girls were compelled to notify either their parents or a judge.

Justice Powell, the courtly and traditional Virginian who wrote the majority opinions, emphasized that each of the rulings was solidly based on the foundation set down ten years ago. "The court repeatedly and consistently has accepted and applied the basic principle that a woman has the fundamental right to make the highly personal choice whether or not to terminate her pregnancy," he wrote. Only when the fetus could be viable outside the womb, generally not until the third trimester, can the state seek to protect the life of the unborn child.

The two Justices who originally opposed Roe vs. Wade, Byron White and William Rehnquist, were joined last week by Sandra Day O'Connor, who authored the strongly worded dissent (see box). O'Connor argued that the state's interest in protecting potential human life exists in all stages of the pregnancy. She wrote: "In Roe, the court held that although the state had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of a pregnancy than it is at viability or afterward." (In a footnote, Powell rebukes this reasoning as a disguised attempt to overturn the 1973 decision. "The dissent stops short of arguing flatly that Roe should be overruled," he wrote. "Rather, it adopts reasoning that, for all practical purposes, would accomplish precisely that result.")

"I believe the court rulings were so sweeping that there will be little that can be done at the state level," said Planned Parenthood's Wattleton. But last week's decisions are unlikely to cool the abortion battle. "Every time a decision comes down, we pick up more activists," says David O'Steen of the Minnesota Citizens Concerned for Life. Pro-lifers hope that the composition of the high court could change in their favor if Reagan seeks and wins a second term; five of the pro-choice majority are over 73 years old. More immediately, the movement plans to redouble its efforts for a human-life amendment. "The rulings should stimulate the efforts of those of us advocating a constitutional amendment," says the Rev. Jerry Falwell, leader of the Moral Majority. In St. Louis this week, the bells of Roman Catholic, Baptist, and Missouri Synod Lutheran churches will peal at 5 p.m. each day to show support for the measure.

Although supporters say the court decision could produce a backlash that will rally support for the constitutional amendment proposed by Hatch, most Senators feel that it will only reinforce existing opinions. The proposal may not make it out of committee in the Democratic-controlled House, and if it does, it is unlikely to win the two-thirds support needed for passage there. Helms is once again pushing for his own peculiar remedy, a bill that would strip the courts of power to rule on the abortion issue. But it will probably be filibustered in the Senate, spurned in the House and, in the improbable event that it passes, be struck down by the courts.

The high court's rulings are thus unlikely to settle the country's most controversial social question, just as their precedent in 1973 inflamed rather than damped down the political struggle over abortion. But these new decisions will at least restrain most legislative attempts to nibble away at what the Supreme Court has already declared to be a constitutional right. Says Yale Law Professor Abraham Goldstein: "The court is sending a signal to the states and localities to stop tampering.''

--By Walter Isaacson. Reported by Anne Constable and David S. Jackson/ Washington

With reporting by Anne Constable, David S. Jackson This file is automatically generated by a robot program, so viewer discretion is required.