Roe Ruling Has Survived but It May Face a Slow Death

Monday’s long-awaited Supreme Court abortion decision has changed nothing, legal experts said Monday. And it has changed everything.

Nothing has changed because the court announced no new principles governing abortion.

But everything has changed because, for the first time since the 1973 Roe vs. Wade decision, five justices are clearly on record as supporting increasingly tough anti-abortion regulations.

And so, analysts said, Monday’s opinion upholding Missouri’s abortion law indicates that the court’s conservative majority may handle abortion in much the same way that similar majorities have handled liberal precedents on criminals’ rights: not discarding them directly, but nibbling away at them until there is virtually nothing left.

May Not Have to Decide

The court, said Harvard University constitutional law expert Laurence Tribe, may never overrule Roe explicitly because it may never have to do so.

“The majority of the court has handed every state a road map” for undoing Roe, piece by piece, Tribe said. “The majority,” he said, “has begun an inexorable path of dismantling” the Roe decision.

The next steps on that path will largely be up to one member of the court, Justice Sandra Day O’Connor, said former Ronald Reagan Administration Solicitor General Rex E. Lee. O’Connor is the justice in the middle on a court increasingly unreceptive to abortion-rights arguments.

On one side, Chief Justice William H. Rehnquist and Justices Byron R. White and Antonin Scalia are now on record as saying that Roe should be overruled. The court’s newest member, Justice Anthony M. Kennedy, would not go that far Monday, but he was willing to join Rehnquist and White in an opinion saying that they would “modify and narrow” Roe.

Blackmun Dissent

Opposed to those four are Justices William J. Brennan Jr., Thurgood Marshall, John Paul Stevens and Harry A. Blackmun. Blackmun, the author of the Roe decision, announced in a calmly read but emotion-laden dissent that the court’s decision “discards a landmark case” and “casts into darkness the hopes and visions” of American women. Those four would maintain Roe and subsequent abortion-rights decisions intact.

O’Connor staked out a middle ground Monday, as she has in previous cases. Abortion rights, in her view, are protected by the Constitution, but not intensively. State restrictions on abortion are valid so long as they are not “unduly burdensome.”

Although none of the other eight justices agrees with that formula, each side needs O’Connor’s vote to form a majority.

“One person is really deciding what the law is,” Lee said, even though “there is only one person who really takes that position.”

O’Connor has never defined what she means by “undue burden” and that virtually guarantees more test cases to come. But in the past, she has made clear that very few state restrictions would go too far for her liking.

O’Connor has said, for example, that she would approve state laws requiring that all second-trimester abortions take place in hospitals, not outpatient clinics. Although about 90% of all abortions take place during the first three months of pregnancy, women who seek abortions from the 12th to the 18th weeks of pregnancy often go to clinics, where the cost of abortion is generally far less than the cost in a hospital.

O’Connor has also voted to uphold laws requiring that parents of teen-agers seeking abortions receive more notice than the court currently allows. The justices agreed Monday to consider two cases next fall involving that question.

Significantly, among the few abortion restrictions that O’Connor has indicated she would not approve was one that the court struck down in a 1976 case, also from Missouri, giving husbands a veto over a woman’s decision to have an abortion. Anti-abortion activists have vowed to pursue such “fathers’ rights” laws as future tests of how far the high court is willing to allow abortion regulation to go.

For all the portents of vast change to come, however, the court’s actual decision Monday was remarkably narrow.

The deeply divided justices upheld only one significant new restriction on abortion rights--a Missouri rule against abortions in public hospitals. And that restriction, while of great significance to poor persons who use public hospitals, involved only the extension of an existing rule, not a dramatic break with the past.

In the past, the court has repeatedly said that the Constitution does not force states to spend taxpayer funds in programs such as Medicaid to support abortions. Lawyers who challenged Missouri’s law tried to convince the justices that public hospitals are fundamentally different from the programs the court had looked at before.

But the court majority was not receptive. The Constitution may stop the government from interfering with a person’s rights, Rehnquist wrote, but it confers “no affirmative right to government aid.”

The court largely sidestepped other questions in the case.

The justices upheld a regulation requiring doctors to test women seeking abortions after the 20th week of pregnancy to see if their fetuses are viable. But O’Connor provided the crucial fifth vote only on the grounds that the rule requires only limited tests, such as a sonogram, that a doctor deems appropriate. Abortion rights advocates had feared extensive, costly and potentially dangerous tests that would have made abortions after 20 weeks all but impossible to obtain.

If the experts are correct and Roe is gradually whittled away, the process will fit a pattern of gradually cutting back on the liberal precedents established by the court under the late Chief Justice Earl Warren.

In the mid-1970s, after President Richard M. Nixon’s appointees had joined the court, many observers expected the court to openly overturn major cases handed down by the Warren court.

But the swing justices of the 1970s and early 1980s, Potter Stewart and Lewis F. Powell Jr., refused to follow that script. Like O’Connor on abortion, they often ruled against the earlier decisions, but on a case-by-case basis.

Consequently, all the major criminal-law precedents of the Warren court remain on the books. The court still uses them in some cases to rein in state and local officials.

Liberal critics of the court, however, often assert that many of the decisions have been reduced to mere shells, robbed of most of their vitality. Roe vs. Wade may now face the same fate.