The U.S. Supreme Court gave the states new authority Monday to restrict a woman`s constitutional right to abortion, significantly limiting for the first time the effect of its landmark 1973 decision, Roe v. Wade.
The court stopped short of overturning the 1973 ruling legalizing abortion. But its ruling, which came in a Missouri case, shifted the battleground over the explosive issue to state legislatures and virtually assured that abortion will play a leading role in state elections throughout the nation for years to come.
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About 140 antiabortion bills have been introduced in state legislatures throughout the nation.
In addition to its decision Monday, the court agreed to hear three more cases next fall, including one from Illinois, that involve laws aimed at restricting abortion rights.
Groups favoring the right of women to make their own choice about abortion were dismayed by Monday`s decision in Webster v. Reproductive Health Services; antiabortion forces were jubilant, and some predicted the ruling marked the beginning of the end for legalized abortions.
One Reagan appointee, Justice Antonin Scalia, complained Monday of the court`s refusal to overturn Roe v. Wade.
”It . . . appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be,” he wrote.
The key issue decided by the court Monday forces physicians to conduct tests to determine whether a fetus is viable if the mother`s pregnancy is 20 or more weeks. Fetuses are generally considered viable, or capable of living outside the womb, after 24 weeks.
The decision reflected the new conservative majority on the court that was created by former President Ronald Reagan`s three appointments-Sandra Day O`Connor, Anthony Kennedy and Scalia. Since 1983, the court had rejected two challenges to Roe v. Wade.
In a blistering dissent, Justice Harry Blackmun accused the court majority of inviting state legislatures to dismantle Roe v. Wade in piecemeal fashion, and charged it with ”cowardice and illegitimacy” in refusing to explain its decision or to abide by court precedents.
Blackmun, who wrote the 1973 Roe decision, said the new ruling ”casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children.”
President Bush, who had wanted the court to overturn Roe v. Wade, nonetheless welcomed Monday`s decision. The court, he said, ”appears to have begun to restore to the people the ability to protect the unborn.”
John Sununu, White House chief of staff, told reporters at Kennebunkport, Me., where the President is vacationing, that Bush would continue to work for a constitutional amendment banning abortion.
Atty. Gen. Dick Thornburgh also welcomed the decision.
”Those of us opposed to abortion on demand can take heart that a majority of the justices have seen fit to give the states greater leeway in establishing appropriate limitations on abortion,” he said.
Randall Terry, president of the antiabortion group Operation Rescue, said of Roe v. Wade: ”I think it`s going to go down.”
Molly Yard, president of the National Organization for Women, said the decision ”chips away” at Roe v. Wade. ”There will be three more cases next fall,” she said. ”They will chip away some more. Pretty soon nothing much will be left for a woman in controlling her reproductive life.”
Judith Widdicombe, founder of the Missouri clinic involved in Monday`s decision, said: ”There`s a movement in this country that will not tolerate this. It will become our Vietnam of the 1990s.”
But Sen. Gordon Humphrey (R., N.H.), an abortion foe, said the ruling is
”the first big step toward overturning Roe v. Wade and another step toward the end of the killing of prenatal infants.”
The Roe decision held that an abortion was up to a woman and her doctor in the first trimester of pregnancy, could be reasonably regulated by the state in the second trimester and could be prohibited except to save the woman`s life or health in the third trimester. A trimester is roughly 13 weeks.
Monday`s ruling took the form of a series of decisions, most decided by 5-4 votes, that restored sections of a Missouri law struck down by a U.S. District Court and U.S. Court of Appeals.
The five basic majority votes came from Chief Justice William Rehnquist and Justices O`Connor, Kennedy, Scalia and Byron White. The four basic dissenting votes were cast by Justices Blackmun, John Paul Stevens, Thurgood Marshall and William Brennan.
Rehnquist and White had cast the court`s two dissenting votes in Roe v. Wade.
Rehnquist mustered four other votes Monday to uphold the key provision of the Missouri law requiring physicians to conduct tests to determine if a fetus is viable whenever they have reason to believe the fetus is at least 20 weeks old. If the fetus could survive, the doctor could not carry out an abortion.
While the tests will increase the expense of abortion, Rehnquist said, they further ”the state`s interest in protecting potential human life.”
Rehnquist`s opinion also upheld a provision of the Missouri law that makes it illegal for public hospitals to perform abortions or for state employees to take part in abortions or to encourage a woman to seek one that is unnecessary to save her life.
Rehnquist and the court majority declined to rule on the constitutionality of the preamble to the Missouri law, which states that ”the life of each human being begins at conception.”
The chief justice wrote that the preamble ”does not by its terms regulate abortion” and therefore the court did not need to rule on it unless it is used to restrict activities ”in some concrete way.”
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Opponents of the law had argued that the preamble could be used to outlaw certain contraceptive devices that act on a female ovum after it has been fertilized, and Justice Stevens accepted that argument in a separate opinion. The court dismissed a challenge to a Missouri provision barring the use of public funds for ”encouraging or counseling a woman to have an abortion not necessary to save her life.” The court held that this was no longer a live controversy because Missouri had said the provision affected only state fiscal officers and not physicians or health-care providers.
The Reagan administration had urged the court to uphold this provision.
In ruling on the viability tests required by the Missouri law, Rehnquist and two other justices, White and Kennedy, had wanted to overturn the ”rigid trimester analysis of the course of a pregnancy” enunciated in Roe v. Wade on grounds that it is ”unsound in principle and unworkable in practice.”
But O`Connor and Scalia, while agreeing with Rehnquist`s conclusion on this issue, declined to join this portion of his opinion.
O`Connor, writing separately, said she considered Roe`s trimester framework ”problematic.” But there was no need to reconsider Roe now, she said.
”No decision of this court has held that the state may not directly promote its interest in potential life when possible,” she said. She said there would be time later to re-examine Roe ”and to do so carefully.”
Scalia, complaining about the court`s refusal to overturn Roe, said Monday`s decision needlessly prolongs ”this court`s self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political and not juridical.”
In his dissent, Blackmun said the court ”implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases in the hope that sometime down the line the court will return the law of procreative freedom to the severe limitations that prevailed” before Roe v. Wade.
”Never in my memory has a plurality announced a judgment . . . that so foments disregard for the law and for our standing decisions,” he said.
”I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided,” Blackmun said. ”I fear for the integrity of, and public esteem for, this court.”
If the court decision paves the way for discarding Roe v. Wade, he said, the result would be that ”every year hundreds of thousands of women in desperation would defy the law, and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists or they would attempt to perform abortions upon themselves, with disastrous results.”
Blackmun said Monday`s ruling had left the abortion law intact for now and that women still retain the liberty to control their destinies. ”But the signs are evident and very ominous, and a chill wind blows,” he said.