High Court Rejects South Dakota’s Teen Abortion Curb

Refusing to reopen the bitter abortion debate, the Supreme Court on Monday rejected a state’s bid to make it harder for a teen-age girl to get an abortion without a parent’s permission.

Over the objection of three conservative dissenters, the court refused even to hear South Dakota’s appeal of a federal court order that struck down its 1993 law requiring pregnant girls in almost all instances to notify a parent before they obtain an abortion.

Looked at narrowly, the court’s action appears to straighten out one wrinkle in abortion law. States must give pregnant girls the option of bypassing their parents and seeking a judge’s permission to get an abortion.

More broadly, however, the announcement strongly suggests that a solid majority of the high court is unwilling to allow further restrictions on abortion and wants to withdraw from the abortion controversy.

“I think they have decided they don’t want to revisit the abortion issue. Period. No matter what happens,” said James Bopp Jr., general counsel for the National Right to Life Committee.

The antiabortion group had joined South Dakota’s appeal in the case and argued that parents cannot be left out when a minor girl is about to make a fateful decision about her pregnancy.

Under the court’s rule, it takes the votes of four justices to hear an appeal. However, the antiabortion group within the court could muster only three.

Justice Antonin Scalia, writing for the dissenters, blasted his colleagues for striking down the state’s law without granting it a hearing.

“Today’s denial [of the appeal] serves only one rational purpose: it makes our abortion ad hoc nullification machine as stealthful as possible,” he wrote. Chief Justice William H. Rehnquist and Justice Clarence Thomas joined his dissent.

Four years ago in a surprise move, the court affirmed the Roe vs. Wade ruling that gave pregnant women a right to choose abortion. On a 5-4 vote, the court said that states cannot put an “undue burden” on a woman who seeks an abortion.

Until then, the court had been gradually allowing more restrictions on abortion and had signaled that a majority might well vote to overturn the abortion right.

But in June 1992, Justices Anthony M. Kennedy and Sandra Day O’Connor changed direction and said they were committed to upholding the basic principle that women may lawfully choose abortion.

Angry and frustrated, Scalia lambasted Kennedy and O’Connor in court opinions and private comments. The two justices, like him, were appointed by then-President Reagan, a staunch foe of abortion. Scalia suggested that the two had betrayed their allies and their legal principles by joining the abortion-rights side.

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While Kennedy and O’Connor did not respond publicly, the two have refused steadfastly to reconsider their 1992 decision.

“They seemed to say: ‘This is where we are drawing the line. That’s it and now we are withdrawing from the controversy,’ ” said Roger Evans, counsel for the Planned Parenthood Federation in New York.

Since 1992, the justices have not agreed to rule on a single abortion case. The only exceptions have been free-speech cases that involve abortion protests.

But lower courts have continued to struggle over how to apply the “undue burden” principle.

At least 36 states, including California, have laws on the books that require pregnant minors to notify a parent or a judge before they get an abortion.

California’s law was upheld by the state Supreme Court earlier this month but it has not taken effect. Monday’s action does not affect those laws. South Dakota tried to go one step further by eliminating the girl’s option of going to a judge.

That law is unconstitutional as written because it puts a “substantial obstacle” in the path of many young girls seeking an abortion, said Chief Judge Richard S. Arnold of the U.S. 8th Circuit Court of Appeals.

“The state can impose regulations designed to ensure that a woman makes a thoughtful and informed choice but only if such regulations do not unduly burden her right to chose whether to abort,” wrote Arnold. South Dakota’s governor appealed that ruling in November.

But with a solid majority of six justices unwilling to reconsider the matter, the court handed down its order in Janklow vs. Planned Parenthood, 95-856, dismissing the appeal.