A Place Where the State Does Not Belong : Supreme Court takes up Pennsylvania abortion law
In Buffalo this week, and probably for the next few weeks, the politics of the polarization of abortion will once again play out on the national stage. This unnecessary production, starring the anti-abortion group Operation Rescue and abortion rights activists, comes to us courtesy of the U.S. Supreme Court, which for the last three years has added to the confusion surrounding the issue of how much the state may interfere in a decision as essentially private as abortion.
The Supreme Court today will hear arguments on whether to adopt a new legal standard that would turn back the clock and again permit states to make most abortions a crime. It has a been a long and tortuous road toward this potentially clarifying moment--billed as the showdown on the status of Roe vs. Wade, the 1973 decision that affirmed choice as a fundamental right for women. Now both anti-abortion and abortion rights activists suggest that the court might not overturn the Roe decision through the case now before it but instead might continue to gnaw around the edges of the right granted to women in that landmark ruling.
Directly before the court is the legality of a Pennsylvania law that places restrictions on a woman’s right to abortion, including requirements that a married woman notify her husband, that there be a 24-hour wait before any abortion and that doctors show patients a pamphlet with pictures of developing fetuses.
The high court once struck down another Pennsylvania law nearly identical to the one now under review. That was in 1986, when the court majority still favored keeping the state out of decisions about a woman’s reproductive choices. But six days after that decision, Justice William Rehnquist was elevated to chief justice and Antonin Scalia was nominated to the Supreme Court, both solidly anti-abortion conservatives. In 1989, the court majority used a Missouri case, Webster vs. Reproductive Health Services, to begin the dismantling of federal abortion rights and open the way for a patchwork of state laws in which abortion rights depend on local politics. Thus in California, where the governor and Legislature agree that the woman, not the state, must make the decision--and where the state Constitution guarantees the right to privacy--the right of choice remains strong. But other states, like Utah, would make abortion a crime except in rare cases. Fundamental rights don’t stop at state borders. It would be wrong if the court embraces a ruling that makes the same private decision a crime in Utah and perfectly legal in California.
The complexities of great moral issues are never captured through the simplistic slogans of the type on display in Buffalo this week. Abortion is not something to be celebrated; but neither is abortion proof of modern moral decay. What abortion is and has been is a fact of American women’s lives since the 18th Century; into the early 19th Century, abortion was legal under common law in most states before “quickening,” when a woman can feel the fetus move.
The real question is not whether abortion will occur but whether the procedure will be legally, and thus safely, available throughout the nation. Stripped of the explosive and emotional rhetoric, that is what is before the court. The court should opt for the availability of legal and safe abortions, and to keep the state out of this most personal of a woman’s decisions.