Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, January 27, 1992 TAG: 9201270076
SECTION: NATL/NATL PAGE: A-1 EDITION: METRO
SOURCE: RUTH MARCUS
DATELINE: WASHINGTON LENGTH: Long
JUSTICES GO SLOW ON ROE
When a deeply divided Supreme Court in 1989 gave states more leeway to restrict abortion, Justice Antonin Scalia pleaded in vain with his colleagues to get it over with and explicitly overrule the Roe vs. Wade decision."We can now look forward to at least another term with carts full of mail from the public, and streets full of demonstrators," Scalia predicted.
His colleagues may have remembered Scalia's warning last week, when 70,000 anti-abortion protesters converged on the court for the annual demonstration marking the anniversary of the 1973 decision establishing abortion as a constitutional right. But they probably will not heed the warning, and the demonstrators will be back again next year for the 20th anniversary.
Last week the court announced that it would embroil itself once again in the abortion issue and consider the constitutionality of a Pennsylvania abortion law that includes a 24-hour waiting period and a requirement that married women notify their husbands.
The court, if it chooses, could use the Pennsylvania case to state explicitly that Roe is overruled and remove itself from the business of deciding abortion cases.
Since the court's last abortion ruling, Justices David Souter and Clarence Thomas have replaced two staunch supporters of abortion rights; while the new justices' views on the subject remain a mystery, few expect they will join the two remaining champions of constitutional protection for abortion who remain on the court, Justices Harry Blackmun, the author of Roe, and John Paul Stevens.
But the court has given no indication that it is prepared to abandon its strategy, as Scalia described it, of dismantling the constitutional right to abortion "doorjamb by doorjamb" and simply announce that Roe is no longer the law of the land.
Last year, when it was itching to overrule a victims'-rights precedent, the court reached out on its own to raise it even though it was unnecessary to resolve the case before it.
In the Pennsylvania abortion case, the court took almost the opposite tack. In its order Tuesday, it narrowed the questions rather than expanding them and chose not to address the one asked by abortion-rights advocates in their court papers: whether Roe vs. Wade continues to be the law of the land.
"When the case is over, I expect that nobody is going to be able to go out and say Roe has been overruled," said Catholic University law professor Robert Destro, an abortion opponent. "The court could be in the same position in Roe as it is with Plessy v. Ferguson," the 1896 case allowing segregated railroad cars. "The words `Plessy vs. Ferguson is overruled' never appear in Brown vs. Board of Education, but everyone knows that it's dead."
Oddly enough, abortion-rights advocates - convinced that a majority of justices no longer support full constitutional protection for abortion rights - would prefer to have the court adopt Scalia's approach and make the blanket announcement that Roe is overruled.
They believe that would at least have the political silver lining of energizing voters to the reality that a woman's decision to have an abortion would no longer be guaranteed against most governmental interference.
"My greatest fear is that the court will never provide a single dramatic ruling while the country becomes more and more accustomed to more and more women actually losing access to abortion," said Duke University law professor Walter Dellinger, an abortion-rights supporter.
So will Roe be effectively overruled in the Pennsylvania case even if the justices do not specifically overrule it? That depends on what proposition Roe stands for.
The case itself involved a Texas law that made it a crime for a woman to have an abortion, except when the life of the mother was at stake.
Most people, when they contemplate whether the court will "overrule Roe," probably think in terms of such an across-the-board ban. The modern-day equivalents of the Texas law are statutes such as those passed by Louisiana, Utah and Guam, which provide exceptions only in limited cases.
But the court in Roe did far more than merely invalidate the Texas law. It declared abortion to be a fundamental right of women, one of the limited category of rights that can be infringed by government only for the most compelling reasons.
Abortion-rights groups press the view that it would be tantamount to overruling Roe to declare that abortion is no longer a fundamental constitutional right. States would be free to heap obstacles in the path of women seeking abortions, and perhaps to adopt laws that prohibit abortion in almost all circumstances.
If a majority of justices decide that abortion rights are not entitled to special constitutional protection, how would the court rule on laws that prohibit most abortions?
"I would be surprised if we learned that from this case," said Harvard Law School professor Laurence Tribe, an abortion-rights supporter. But if the court rules that abortion laws are not subject to any more rigorous constitutional scrutiny than other laws, Tribe and others on both sides of the issue said, states could probably find ways to fashion an outright ban on most abortions that would pass constitutional muster.
If the full court were to adopt the position of Chief Justice William Rehnquist's opinion in Webster vs. Reproductive Health Services - that abortion is a mere "liberty interest," not a fundamental right - "then there would be virtually no limit on a state's ability to enact an outright ban," Dellinger said.