Ruling Backs State Action on Abortion : Judiciary: U.S. appeals panel adopts Justice O’Connor’s approach in Pennsylvania case. But the view may already be irrelevant.

A federal appeals court in Philadelphia has made official what had been clear for at least two years: a state may regulate abortion.

In deciding Monday to uphold a Pennsylvania law that requires a pregnant woman to meet with her doctor and wait 24 hours before having an abortion, the three-judge appeals court panel adopted Justice Sandra Day O’Connor’s approach to abortion.

In O’Connor’s view, courts should uphold state abortion regulations so long as they do not pose an “undue burden” or a “severe limitation” on a woman’s right to terminate an early pregnancy.

Since she first espoused her approach in 1983, O’Connor has provided a middle-of-the-road answer to the abortion question.

The court’s liberals, led by Justice Harry A. Blackmun, author of the 1973 Roe vs. Wade decision that made abortion legal, insisted on striking down all anti-abortion regulations that applied to women in the first six months of pregnancy. The conservatives, led by Justices William H. Rehnquist and Byron R. White, favored upholding all state regulations and even a total ban on abortion.

Ironically, Monday’s appeals court ruling in Philadelphia, the first to officially adopt O’Connor’s view, came only days after a change in the Supreme Court line-up may have undermined her approach. With the addition of Justice Clarence Thomas, five or six of the nine justices are now considered likely to uphold an outright ban on abortion.

“O’Connor’s view is probably no longer relevant,” said Rachael N. Pine, an American Civil Liberties Union lawyer in New York.

In the highly publicized Webster case in 1989, O’Connor appeared to hold the balance on abortion between the court’s liberal and conservative factions. She provided the decisive swing vote in that decision, which permitted Missouri to regulate abortion. But the retirements of liberal justices William J. Brennan and Thurgood Marshall and their replacement by conservative Justices David H. Souter and Thomas almost certainly have tilted the balance to the right.

Anti-abortion advocates are now convinced that the court majority will overturn the basic right to abortion at the first opportunity.

“We just want to get a case, any case, up there as soon as possible,” said James Bopp, a Terre Haute, Ind., attorney and general counsel for the National Right to Life Committee. “I don’t have a preference on which case goes first.”

ACLU lawyers reacted angrily to the appellate ruling in Philadelphia and accused the judges of changing the law in anticipation--rather than in reaction--to a Supreme Court pronouncement.

“They have said Roe vs. Wade is no longer the law,” said Kathryn Kolbert, the ACLU attorney who represented Planned Parenthood of Pennsylvania, which challenged the 1989 state law.

Within its jurisdiction, the appeals court ruling scraps the Roe vs. Wade opinion written by Blackmun but it does not throw out the basic right to choose abortion. ACLU attorneys now must decide whether to ask the full appeals court to reconsider the decision or to directly appeal to the Supreme Court.

Lawmakers in Louisiana and Utah have passed nearly total bans on abortion. Those laws are under challenge in the federal courts and at least one of those cases is likely to arrive at the high court by next fall. If so, a decision on whether to overturn the basic right to abortion can be expected early in 1993.