By Marshall Ingwerson, writer of The Christian Science Monitor
The Christian Science Monitor
THE status of abortion rights in the United States is nearing another turning point.
Tomorrow, the US Supreme Court is hearing a case that abortion-rights advocates are billing as the all-but-certain end of constitutional protection for abortion decisions.
The outcome may not be nearly so dramatic a shift. But even a decision close to what the justices have already decided in the past three years would result in greater difficulty for many women to obtain abortions.
The case is a challenge to a Pennsylvania law that restricts the right to abortion. The justices will hear oral arguments Wednesday, and a decision is expected by late June.
The restrictions in this case do not approach an outright ban.
Before performing an abortion, a doctor would provide information about fetus development and abortion alternatives, then wait 24 hours before the operation. A girl under 18 would need the permission of a parent or a judge. A married woman would be required to notify her husband before an abortion, except under threat of violence.
All these restrictions except the husband-notification rule survived the scrutiny of Third US Circuit Court of Appeals on their way to the Supreme Court.
The key issue in this case is the standard the court uses.
The 1973 Roe v. Wade decision established abortion as a fundamental right, so that any state regulation had to prove a compelling state interest to be allowed. The court has been gradually lowering the threshold for state restrictions on abortion in recent years. In the 1989 Webster v. Reproductive Health Services decision, Justice Sandra Day O'Connor - the swing vote - wrote that states could impose restrictions on abortions so long as they did not impose an "undue burden" on a woman's legal right to obtain an abortion.
If the court affirms the use of the undue-burden test, then many restrictions such as those in Pennsylvania's law may pass constitutional muster. But sweeping bans such as those enacted in Guam, Louisiana, and Utah would probably not stand. If the court adopts a more hands-off standard that says a regulation must simply have a rational basis, then the constitutional protection for abortion is virtually gone.
Under this standard, even Guam's strict ban, which was struck down as unconstitutional by an appellate court last week, would stand a chance of surviving.
Four Supreme Court justices have indicated a willingness to adopt a rational-basis test for restrictions on abortion - Antonin Scalia, Byron White, Anthony Kennedy, and William Rehnquist. …