Bush Court Likely to Back Abortion Limits by States

A woman’s constitutional right to choose abortion without governmental restrictions probably will not survive the Bush Administration, lawyers on both sides of the volatile issue say.

The Supreme Court appears likely to retain the basic element of its landmark Roe vs. Wade finding--that states may not prohibit abortion--but five of the nine justices already seem prepared to uphold state regulations of the practice.

The fence-straddler is Justice Sandra Day O’Connor. Although she opposes reversing the 1973 ruling, she has supported limiting its reach.

“It all seems to depend on Justice O’Connor and whether she adheres to what she has written before,” said Susan Deller Ross, a Georgetown University law professor.

But if George Bush, as President, has an opportunity to replace one of the four justices who support the unrestricted right to abortion, he could swing the court’s balance against it, regardless of O’Connor’s stance.

Although Bush said at his first post-election press conference that he would set no “litmus test” in choosing a Supreme Court nominee, he has also made it clear that he opposes abortion.

If the right to choose abortion seems safe with today’s court, the same cannot be said of the right to abortion free of governmental regulation. The court will have a chance next year to reinstate a Missouri law that prohibits use of public funds, public employees or public hospitals for the purpose of “encouraging” or assisting abortion.

Since 1973, the court has regularly struck down such laws. In 1977, 1983 and 1986, it overturned requirements that second trimester abortions must be performed in hospitals, that women must be informed of the risks of abortion and that a doctor must wait 24 hours before performing an abortion for a woman who has requested one.

O’Connor, Chief Justice William H. Rehnquist and Justice Byron R. White have dissented from those decisions at every opportunity. And, since the most recent ruling, President Reagan has appointed to the court Antonin Scalia and Anthony M. Kennedy, both considered likely to uphold such regulations.

Compared to Rehnquist and White, who would support all restrictions because they believe the Constitution affords no right to abortion, O’Connor has reached her conclusions on narrower grounds.

O’Connor’s Position

O’Connor has written that she would strike down regulations when “the state has imposed an undue burden on the abortion decision. An undue burden will generally be found in situations involving absolute obstacles or severe limitations on the abortion decision, not wherever a state regulation may inhibit abortions to some degree.”

Under that standard, a law requiring abortions to be done in hospitals or specifying a 24-hour waiting period might be upheld, although an outright ban would not.

If O’Connor adhered to this position, Rehnquist would have at most four justices--one short of a majority--willing to overturn Roe vs. Wade.

That assumes Kennedy would vote to overturn Roe, which is by no means certain.

Gerhard Casper, a former University of Chicago Law School dean and a veteran court watcher, said that any justice must consider both his views on the Roe decision and his dedication to stability in the law.

“I had argued at the time that Roe was wrongly decided, which puts me in large company,” Casper said, “but if I were on the court now, in Kennedy’s position, I would be extremely reluctant to overturn it.”

Casper said he cannot judge how Kennedy, who joined the court last February, will resolve that question. “With Kennedy,” he said, “we just don’t have enough information to draw a conclusion.”

Constant Reminders

This much is certain: The court will continue to struggle with the abortion issue. The justices see and hear many reminders of the controversy--vehement “right to life” protests at clinics around the country, the Bush campaign’s stated opposition to abortion, the pickets who are in front of the Supreme Court building every day.

Even among constitutional law experts, the 1973 abortion decision remains controversial because in making it, the high court made a leap beyond the text of the Constitution.

It based the decision on the 14th Amendment, which says that “no state shall . . . deprive any person of . . . liberty . . . without due process of law.” Over the decades, according to former Justice Potter Stewart, the court concluded that “freedom of choice in matters of marriage and family life is one of the liberties” protected by the 14th Amendment.

In striking down a Connecticut law against sales of contraceptives in 1965, the court also suggested that the 14th Amendment implies a “right to personal privacy” in family matters. The court in 1973 took the next step and struck down as unconstitutional 21 state laws that made abortion a crime.

Reasoning Behind Roe

“The 14th Amendment’s concept of personal liberty and restriction on state action . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Justice Harry A. Blackmun wrote in Roe vs. Wade. His opinion had the support of seven of the nine justices.

Rehnquist and White, the two dissenters, have made it clear that they would overrule Roe vs. Wade if they could get the support of three colleagues. President Reagan, an avowed opponent of abortion, has since added three justices to the court, but the court has no immediate opportunity to overturn the 1973 ruling.

Early next year, however, the justices will consider whether to reinstate a Missouri law declaring that “human life begins at conception” and forbidding use of public funds, public employees or public hospitals for abortions. The Administration urged the Supreme Court to uphold the Missouri law, which was struck down as unconstitutional by the lower courts.

Fears Conservative Victory

Dawn Johnsen, legal director of the National Abortion Rights Action League, said she fears that the court’s conservatives, with O’Connor’s vote, will uphold the Missouri law.

“She is willing to uphold regulations that are very onerous to women (who might seek abortions),” Johnsen said. “If public hospitals can’t perform abortions, it will simply make it more difficult and more costly for a woman to get an abortion.”

On the other side, Michael McConnell, a University of Chicago law professor and a critic of the Roe decision, said that the key issue in the Missouri case is use of public funds.

“This is like giving a small grant to South Africa,” he said. “It is not the amount, but the principle of it. Millions of people think abortion is murder, and they should not be asked to help pay the cost of it.”