Court Dodges Direct Ruling on Roe Justices to Hear Pennsylvania Abortion Case; Impact on Landmark 1973 Law Remains Unclear
Linda Feldmann, writer of The Christian Science Monitor, The Christian Science Monitor
IS this the end of the line for Roe v. Wade?
With the announcement Tuesday that the United States Supreme Court will rule on a controversial Pennsylvania law limiting abortion, abortion-rights advocates expect the worst for the landmark case.
Ironically, the court's announcement came on the eve of yesterday's 19th anniversary of the Supreme Court decision which established a fundamental constitutional right to abortion. But even though the court did not say if it would rule explicitly on Roe, an expected decision to uphold the limits on abortion in Pennsylvania would mean Roe is de facto overturned, say lawyers for Planned Parenthood and the American Civil Liberties Union, which represent the plaintiffs in the case. Not so, say others who argue that there's plenty of room for the Supreme Court to rule narrowly on the Pennsylvania law without reaching the larger issue of Roe.
"Roe v. Wade is now one of the most ambiguous terms in the English language," says Walter Dellinger, a professor of constitutional law at Duke University. Hewill file a "friend of the court" brief in the case for abortion supporters in Congress. Debate on the future of Roe is filled with semantic arguments. What, for example, does the word "fundamental" mean when abortion is described as a "fundamental right part of a right to privacy, as it was in Justice Harry Blackmun's majority opinion in 1973? "Fundamental rights," says Harvard law professor Laurence Tribe in his 1990 book "Abortion: The Clash of Absolutes," are those that "can be abridged by government only when demonstrably necessary to achieve a 'compelling' objective."
The question, then, is what constitutes a "compelling" objective in the case of abortion.
"There are two competing concepts here," says law professor Michael Gerhardt of the College of William and Mary. "Fundamental rights are competing with compelling state interests. The definition of the word 'fundamental' is key." Regulations allowed
In 1989, the Supreme Court ended 16 years of judicial restraint on abortion by allowing the state of Missouri to impose certain regulations on abortion in the ruling Webster v. Reproductive Health Services.
Though five of the nine justices upheld the Missouri regulations, one of them, Justice Sandra Day O'Connor, upheld them without concluding that Roe should be overruled. So Roe remained in effect. But the ruling sent a signal to all state legislatures that Roe was no longer an absolute shield.
Since then, two new justices selected for their conservative views, David Souter and Clarence Thomas, have replaced two liberals on the bench. Thus, the court appears more poised than ever to further Roe's demise.
The Pennsylvania law contains several provisions, which are waived in cases of medical emergency:
* Women seeking abortion must be presented with information describing the procedure and alternatives. …