The Department of Justice has asked the U.S. Supreme Court to overturn its 1973 decision that made abortion legal. If the court agrees, regulation of abortion undoubtedly would once more be the province of state legislatures, stirring up divisiveness more bitter than any yet experienced on the issue. The Justice Department brief also leaves no room to doubt what is at stake in the case: American women may no longer be protected by law if they decide, for whatever reason, to end a pregnancy by having an abortion.
The case in question comes from Missouri, whose law bans use of public money, facilities or employees in any way to encourage abortions. The 1973 ruling being challenged is Roe vs. Wade, in which the Supreme Court said states could no longer declare abortion illegal, although they could regulate the conditions under which abortions are performed in the middle and especially the latter stages of a pregnancy.
The court has several options. It can confirm lower court decisions that strike down the Missouri law as unconstitutional because it raises unfair barriers for women seeking abortions. We hope it takes that course. But some lawyers familiar with both the court and abortion cases think the justices may give states a freer hand for reasonable restrictions. Without a strict definition of reasonable, that kind of decision could cause chaos. But the idea must be taken seriously, because it has been advanced in the past by Justice Sandra Day O’Connor, a former state legislator herself who generally prefers state over federal authority.
A third alternative is flat reversal of Roe vs. Wade. The Bush Administration’s brief strongly recommends that alternative. Only legislatures can reach the necessary “political resolution,” the Justice Department brief said. “It cannot be imposed by the courts from above.”
What if the court overturns Roe vs. Wade?
State legislators are often more responsive than Congress to pressures of anti-abortion groups. In California, for example, the Legislature has voted in each of the last 11 years to place tight restrictions on use of state money for abortions for poor women. State courts have just as regularly struck down those restrictions.
Before Roe vs. Wade, only 17 states, including California, allowed abortions under any circumstances. Since then many have imposed restrictions. For example, Arkansas and Colorado laws prohibit the state from paying for abortions except to save a mother’s life, an important restriction because Congress is virtually the only source of funding. In Hawaii, a woman seeking an abortion must be a state resident, and all abortions must be performed in hospitals. Louisiana says it intends to ban abortions if the Supreme Court allows it to do so. And so on. The legal standing of women contemplating abortion would vary from state to state, with many of them banning abortions even though a majority of Americans support women’s right to choose.
The latest California Poll found 66% of the state’s residents support a woman’s right to an abortion during the first three months of pregnancy. National polls have found the strongest support for abortion when pregnancy results from rape or when the baby might be born seriously handicapped. The way questions are asked often determines the degree of support for abortion, but another national survey--the Gallup Poll--recently reported that 58% of those interviewed did not want the court to overturn Roe vs. Wade.
Overturning the decision is precisely what the Bush Administration wants, saying that “the deep division in American society over the underlying question of abortion . . . has, in substantial measure, been a product of the decision itself.” That is not true. The division existed before the 1973 decision, and will only deepen if 50 arenas for contention are created instead of the one that now exists. The friction may always exist, but women are far better protected by Roe vs. Wade than they are likely to be if the battle for their rights must be fought state by state, year by year.