Wanted: A Narrow View

The U.S. Supreme Court once again is asked to rule on laws in two states restricting women’s decisions to terminate pregnancies through abortions. But this time, the federal government, which is not a party to either case, has asked the court to reach beyond those cases and overturn the 1973 Roe vs. Wade ruling that legalized abortion.

Neither case involves the fundamental 1973 ruling that tells states when they have a legal interest in an abortion decision and, more important, when they do not. The justices can and should ignore the Justice Department pleading and concentrate narrowly on the cases themselves.

Strong support for that view is contained in a friend-of-the-court brief filed for Sen. Bob Packwood (R-Ore.), Rep. Don Edwards (D-San Jose) and 79 other members of Congress, including 18 from California. The brief points out that the Justice Department would have the country return to its status before 1973 in which states had wildly varying laws. “Whatever rights women might have in this matter would be disregarded in some states; whatever rights the unborn are thought to possess would be ignored in others.”

Attorneys for the congressmen, headed by Laurence H. Tribe of Harvard University, contend that the government is basically arguing that state legislatures should have a free hand in defining fundamental rights. That argument, they add, “ignores the choice of a fundamentally different form of government that was made for us nearly two centuries ago.” The court has long held that one’s right to life, liberty, free speech and other fundamental rights “may not be submitted to vote; they depend on the outcome of no elections . . . .”

Furthermore, the attorneys say that the government would have people believe that the request to return to the pre-1973 status of the law is a relatively modest request. They add that the government views the Roe vs. Wade decision as simply “an erroneous point of departure” from the development of the law to that point. That is simply not the case, the Packwood-Edwards brief argues. Roe vs. Wade was “indeed a natural outgrowth of a gradual process of legal evolution” and reversing that decision would be a repudiation of the 50-year path the court had been taking. The origins of the 1973 decision “included a series of landmark Supreme Court rulings affirming for all of us the liberty to decide for ourselves when and whether to marry, how to raise and educate our children, and how much of our most personal lives to disclose to the world, as well as the right to decide whether to conceive or bear children.”

Overturning Roe vs. Wade would not turn the clock back to 1973 but to 1923, the attorneys argue. “It would not only deprive women of their fundamental liberty, but would also cast into grave doubt the continuing validity of every one of the court’s half-century of privacy decisions, which protect us all.”

In that light, there is more at stake than just a woman’s right to choose to end a pregnancy, vital as that aspect of the case is. In the Justice Department brief, the Reagan Administration abandons its philosophy that less government is better government, an action that could affect people well beyond the realm of the abortion question. The issue is privacy, and the Supreme Court should approach it that way.