Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, January 27, 1992 TAG: 9201290303
SECTION: EDITORIAL PAGE: A-9 EDITION: METRO
SOURCE: GEORGE F. WILL
DATELINE: LENGTH: Long
DEMOCRATS CONFUSE STATES' RIGHTS
DEMOCRATS, SO often mistaken about so much in presidential politics, believe they can pluck the flower of opportunity from the nettle of the abortion controversy. But they may be misreading the significance of the Supreme Court's decision to rule by July on Pennsylvania's abortion law.A divided court may give dusty answers about the constitutionality of that law's various provisions. Besides, for most Americans, abortion is a troubling but peripheral issue, especially during the ravages of a recession. If Democrats are distracted by the abortion issue, they will rekindle suspicions that they are more concerned with the agendas of intense ideological factions than with what most people worry about around the kitchen table (jobs, health care, paying for college).
The court's decision to rule on Pennsylvania's law triggered synthetic hysteria from pro-abortion lobbyists who described the law as "extremely restrictive." Well now.
The law requires a woman to wait 24 hours after consulting with a doctor before undergoing an abortion. Would a law requiring a purchaser of a gun to wait 24 hours before completing the purchase be "extremely restrictive" of the constitutional right to bear arms?
One of the law's five other main provisions is that a woman must notify her husband, if she has one, and he is the father and can be located, unless the pregnancy is the result of sexual assault by the husband, or she fears physical harm from him. How many Americans will consider that an intolerable burden on the abortion right?
The same question can be asked of the law's other four main provisions:
A minor must secure the permission of one parent or a judge.
Doctors must inform the woman about alternatives to, and risks associated with, abortion; about the gestational age of the fetus, and about her right to receive state information about alternatives to abortion. (Do "pro-choice" people believe information burdens the right to choose?)
Abortion providers are required to supply the state health department with information about details of each procedure, including the basis for determining the fetus's gestational age, the basis for determining that a emergencies, the basis for so considering them. (The court's 1973 Roe vs. Wade decision, so cherished by pro-abortion forces, affirms states' broad regulatory powers over third-trimester abortions.) third- rimester abortion was necessary, and in cases considered.
The law's restrictions and requirements do not apply in medical emergencies involving immediate risk of death or "substantial and irreversible impairment of major bodily function."
Most Americans probably consider these provisions reasonable exercises of state discretion consistent with a reasonable abortion right. Most Americans favor easy access to early abortions (90 percent of all abortions occur in the first trimester) but not a "fundamental" constitutional right to unlimited abortion on demand at any point in gestation.
However, on one point Democrats correctly take comfort from the suddenly increased prominence of the abortion issue: Regardless of the Supreme Court's decision or what the public thinks about it, the abortion issue will focus attention on George Bush's altered views on abortion. Those views are so different as to suggest frivolousness and perhaps cynicism regarding abortion, and a general shallowness of convictions.
The 1976 Republican platform endorsed a constitutional amendment to prohibit abortion "except in those very rare cases where the life of the mother is seriously endangered." Strong stuff, but not nearly as strong as the 1984 and 1988 platforms. They endorsed both a constitutional amendment and "legislation to make clear that the 14th Amendment's protections apply to unborn children."
It may be even theoretically impossible to carry the anti-abortion position beyond that endorsement of full due-process and equal-protection rights for fetuses. George Bush ran on that platform. But in 1980 he said he thought Roe vs. Wade was "right."
The Republican Party has gone far beyond the "constitutionalist" position, which even some supporters of liberal abortion laws support. The constitutionalist position favors an amendment declaring that nothing in the document shall be construed to establish a right to abortion. This would protect constitutional law, not fetal life. It would disavow the judicial overreaching that suddenly discovered in 1973 an extreme abortion right in the Constitution. This would just put the issue back where it was until 1973 and where it belongs in our federal democracy, in the states for debates and legislative decisions.
By 1973, 16 states with 41 percent of America's population had liberalized their abortion laws. Two-thirds of all Americans lived in, or within 100 miles of, one of those states. Law follows culture; since 1973, the culture has moved far. Abortion (at least 1.3 million last year) is a more common surgical procedure than circumcision.
Even if the court flatly overrules, as it should, the muddled constitutional law of the 1973 decision, that will merely submit the issue to decision by the nation. It now shows no inclination to extinguish broad access to abortion. So whatever the country thinks about whatever the court does, it probably will not be an election-turning issue. Washington Post Writers Group