Abortion and the Court

Roe vs. Wade, the U.S. Supreme Court’s controversial 1973 abortion ruling, may be flawed, legally and scientifically, as its critics claim. Its holding, that each woman has a constitutional right to decide whether to terminate her pregnancy, was pegged not to the text of the Constitution but to vague concepts of liberty and privacy. The scientific basis for the decision has become shaky as medical technology has made it possible to save smaller and smaller babies. Viability, the point in a pregnancy when a fetus may be able to survive outside the womb (and when states may outlaw abortions), no longer falls in the third trimester, as the court held 16 years ago, but somewhat closer to conception; that’s why many hospitals and physicians will no longer perform abortions after the 20th week of pregnancy.

And yet, whatever the shortcomings of Roe vs. Wade, the justices should ignore the zealous pleas from the Reagan Administration and the state of Missouri to overturn it. The Missouri case that the court last week agreed to review has been billed as a vehicle for reversing Roe vs. Wade and leaving it to state legislatures to decide where and when abortions can be performed. But it would be a tragic mistake for the justices to choose that course, because Roe represents sound social policy, settled law and the innate good sense of the American public.

In a recent Gallup poll, 92% of the respondents --including many of those who believe that abortion amounts to murder--said that it “sometimes is the best course in a bad situation.” Other polls also suggest that Americans are pro-choice; whatever their own religious beliefs or moral scruples, they instinctively feel that it should be up to an individual woman to make the often agonizing decision about whether to bear a child.

Where does that right originate? The Constitution never mentions abortion or privacy, perhaps because abortions were very dangerous and the state was far less obtrusive in 18th-Century America. Justice Harry A. Blackmun, the author of Roe vs. Wade, correctly found that the right to abortion had evolved over the years from “the 14th Amendment’s concept of personal liberty and restriction on state action” and from precedents recognizing “freedom of choice in matters of family life.”

Blackmun’s conclusion that the degree of state regulation of abortion must vary with the stage of pregnancy has been savaged in the law reviews. Yet reversing it would be a disservice to the 1.6 million women a year who choose abortions because they are unmarried or too young or too old or too sick or too poor to rear a child, and it would be a blow to a revered principle of jurisprudence, stare decisis-- the notion that, for the sake of stability, courts should adhere to settled law.

Overturning Roe might not automatically lead to back-alley abortions and women’s deaths. But access to legal and safe abortions would depend on state legislators, who are often more sensitive to their reelection prospects than to preserving individual rights. Would they be able to withstand the pressure from the right-to-life movement to abolish abortion? Would threats from one-issue voters outweigh the often unexpressed and ambivalent views of the majority? Who knows?

We would rather pin our hopes on the high court, the institution charged with vindicating individual rights. When the justices decide the Missouri case this spring, it will be as much a test of their fidelity to stare decisis as of their views about abortion; even the newcomers to the court who believe that Roe vs. Wade was wrongly decided may have trouble overturning a 16-year-old precedent. The court has repeatedly applied Roe’s teachings, striking down laws that masqueraded as regulatory schemes but were actually designed to thwart abortions. Missouri’s latest anti-abortion statute, prohibiting the use of public hospitals or public employees for abortions, represents more of the same and was deservedly struck down in the lower federal courts. The state’s appeal could be decided on narrow grounds, without addressing whether Roe vs. Wade should be overruled. The justices, with some validity, might modify the trimester approach of Roe. But the right to abortion, as important to millionsof women as the rights enumerated in the Bill of Rights, should be preserved intact.