High Court Voids Abortion Curbs : But 5-4 Ruling Indicates Erosion in Support for 1973 Roe Decision

A sharply divided Supreme Court, reaffirming its controversial 1973 decision legalizing abortion, Wednesday struck down a series of Pennsylvania regulations that the justices said improperly restricted and discouraged women seeking to end their pregnancies.

In a 5-4 ruling, the court held that the restrictions violated the constitutional right to privacy. The majority turned aside a plea by the Reagan Administration to uphold the regulations and to use the case to overrule the 1973 decision, known as Roe vs. Wade.

“The states are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies,” Justice Harry A. Blackmun, author of the 1973 ruling, wrote for the court Wednesday.

Although the decision was a substantial setback to the Administration and other anti-abortion forces, there were indications that support for the 1973 decision within the court may be waning.

Burger Dissents

In dissent, Chief Justice Warren E. Burger, who had joined the majority in the landmark ruling 13 years ago, called the decision in the Pennsylvania case “astonishing” and, for the first time, suggested reconsideration of Roe vs. Wade.

Burger’s change in position appeared likely to fuel speculation that, should there be such an opportunity, a pivotal appointment to the court by President Reagan eventually could lead to the politically volatile 1973 ruling’s being reversed or significantly modified.

In another dissent, Justice Byron R. White, joined by Justice William H. Rehnquist, called the 1973 decision “fundamentally misguided” and urged that it be overruled. White accused the majority of reacting “defensively” to criticism of Roe as lacking constitutional support. In Roe, the court had ignored constitutional principles and “created something out of nothing,” he said.

Justice Sandra Day O’Connor, in another dissent also joined by Rehnquist, reiterated criticism she made three years ago by saying that the 1973 decision had proved “unworkable” as a means of regulating abortion. However, O’Connor did not say whether the ruling should be reconsidered or overruled.

The 1973 decision, reached on a 7-2 vote, extended to abortion the right to privacy, effectively invalidating many state laws that made the operation a criminal offense.

‘Viable’ Fetus

The court said that, in the first three months of pregnancy, the right to abortion was unqualified; in the second trimester, the state could regulate abortion to protect a woman’s health; and, in the third, when the fetus was “viable” or able to survive outside the womb, states could prevent abortion when there was no threat to the life or health of the woman.

Since then, the number of abortions performed legally in the United States has grown to 1.5 million annually.

Wednesday’s decision cast wide doubt on the constitutionality of any state laws that could be interpreted as restricting or discouraging women from obtaining abortions.

The justices, upholding a ruling by a federal appeals court in Philadelphia, struck down provisions in a Pennsylvania law that would have required physicians to obtain the “informed consent” of patients by telling them of the detrimental physical and psychological effects of abortion and by providing material about agencies available to help them if they decide instead to give birth.

Also invalidated were regulations requiring physicians to file certain data about abortions and patients for public record (not including the name of the patient), to use procedures in late-pregnancy abortions providing the least risk to a viable fetus and to ensure that two doctors are present for late-pregnancy abortions.

1983 Abortion Ruling

In 1983, the justices invalidated other restrictions on abortion--including requirements that abortions of women more than three months pregnant take place in hospitals, that there be a 24-hour waiting period before the operation is performed and that physicians personally counsel women before abortions and ensure that they are told the unborn child represents “human life” from the moment of conception.

The court said then that it is permissible to require two doctors to be present for abortions in late stages of pregnancy and to require that minors receive approval either from a parent or judge before abortions. But those restrictions were invalidated by Wednesday’s ruling.

Legislation requiring minors to obtain parental consent or court approval before abortions has been passed by the California Senate and is pending before the Assembly.

In the Pennsylvania case (Thornburgh vs. American College of Obstetricians and Gynecologists, 84-495), Blackmun systematically rejected the restrictions that the state sought to impose on abortion.

The court found that counseling and material provided under the “informed consent” regulation would serve to “confuse and punish” and “heighten the anxiety” of a woman seeking an abortion.

The two-physician requirement was invalid, it said, because there was no exception for emergencies. And the data physicians were required to provide was so detailed it was likely that the patient could be identified, “raising the specter of public exposure and harassment,” Blackmun wrote.

‘Promise Extends to Women’

Blackmun concluded that the Constitution promised that certain private matters be kept largely out of the reach of government. “That promise extends to women as well as to men,” he said.

Burger, explaining his shift on the issue, said he had supported the 1973 decision in the apparently mistaken belief that the court was not approving “abortion on demand.” He said Wednesday’s decision “plainly undermines” that belief--and that he had “regretfully concluded” that his concerns over that issue “have now been realized.”

“Today, the court astonishingly goes so far as to say that the state may not even require that a woman contemplating an abortion be provided with accurate medical information concerning the risks inherent in the medical procedure which she is about to undergo and the availability of state-funded alternatives,” the chief justice said.

O’Connor Dismayed

O’Connor also expressed dismay with the sweep of the court’s ruling. “Today’s decision,” she said, “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this court when an occasion for its application arises in a case involving state regulation of abortion.”

O’Connor said she disputed “not only the wisdom but the legitimacy” of the court’s attempt to “discredit and preempt” state regulation of abortion.