Justices Could Use Surgical Clinic Case to Deliver a Knockout Blow to Abortions

The Supreme Court, which began Monday to whittle away at a woman’s right to abortion, will have a chance in its next term to chop out a substantial chunk of that right--and without overturning the 1973 Roe vs. Wade ruling that legalized abortion.

Monday’s 5-4 decision upheld a Missouri law that forbids abortions in “public facilities.” But the great majority of abortions are performed in private clinics or hospitals, and, in the term that begins in October, the justices will consider whether to reinstate an Illinois law that regulates private surgical clinics, including abortion centers.

“The case could be the one-two punch that knocks out the availability of abortion,” Patricia Ireland, counsel of the National Organization for Women, said Tuesday.

Public Hearing Required

Among the Illinois law’s many provisions is a requirement that state officials hold a public hearing in the community before licensing a new medical clinic. When Dr. Richard M. Ragsdale proposed to operate a clinic in Rockford, the required public hearing turned into a shouting match between pro-choice and anti-abortion activists, and Ragsdale abandoned his plan.

In going to court, Ragsdale complained that the Illinois law imposed so many restrictions on the physical layout of abortion clinics that it turned them into the functional equivalent of hospitals.

A federal trial judge and the U.S. 7th Circuit Court of Appeals in Chicago struck down the Illinois law as unconstitutional on grounds that it effectively gave anti-abortionists a “public veto” over the operation of abortion clinics.

The courts concluded also that the law’s regulations governing the physical layout of abortion clinics represented an unconstitutional form of harassment.

“According to the testimony,” the appeals court held, “the minimum-size requirements for examining rooms, procedure rooms, recovery rooms, corridors and doors, for example, not only were not ‘medically necessary’ but do not enhance the safety of the abortion procedure in any way or did not have any medical justification.”

The Illinois attorney general appealed to the Supreme Court, arguing that abortion clinics should not be given a special exemption from medical regulations that apply to all outpatient surgical units in the state. After ruling in the Missouri case Monday, the high court announced that it would hear the appeal from Illinois (Turnock vs. Ragsdale, 88-790).

The outcome in the Supreme Court probably depends on Justice Sandra Day O’Connor, the only woman ever to serve on the high court. Although O’Connor has steadfastly refused to join other justices who have professed a willingness to overturn the 1973 Roe vs. Wade decision, she has been willing to uphold many state abortion regulations.

On Monday, O’Connor repeated her view that state abortion regulations should be struck down only if they put “an undue burden” on a woman’s right to end her pregnancy. In the past, she has defined an “undue burden” as an absolute ban or a “severe limitation” on abortion.

Four other justices have said that they would go further. Chief Justice William H. Rehnquist and Justices Byron R. White and Antonin Scalia have all said--either Monday or in previous decisions--that they believe the Roe ruling should be reversed and the issue returned to state legislatures. Justice Anthony M. Kennedy, in his first recorded vote on abortion, joined Rehnquist’s opinion Monday to “modify and narrow Roe” by permitting some state regulation for the purpose of “protecting potential human life.”

The Illinois case will give O’Connor another opportunity to uphold a state law restricting access to abortion without stating unequivocally whether she supports or rejects the Roe decision.

“I think she will duck that question as long as possible,” said Judith Lichtman, president of the Women’s Legal Defense Fund in Washington. “In the meantime, though, she seems ready to uphold all these statutes and say they are not violations of Roe.”

The Supreme Court accepted two other abortion cases for consideration in the next term, and both concern the constitutionality of state laws requiring that teen-age girls notify their parents before getting an abortion. In the past, this issue has fractured the court and led to several confusing and splintered rulings.

The result has been confusion in the lower courts. Last summer, one federal appeals court upheld as constitutional a Minnesota law requiring that parents be notified in advance of a daughter’s planned abortion, but another appeals court a week later struck down a similar Ohio law.

Early last year, before Kennedy joined the court, the justices split 4 to 4 on this issue in an Illinois case. That outcome suggests that Kennedy can provide the decisive fifth vote to uphold the state laws in the two pending cases (Hodgson vs. Minnesota, 88-1125, and Ohio vs. Akron Center for Reproductive Health, 88-805).