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
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."
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
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. …