A Stunning Approval for Abortion

SOON after her illegitimate son was born two years ago, "Jane Roe," a divorced Dallas bar waitress, put him up for adoption. At almost the same time, "Mary Doe," an Atlanta housewife, bore a child who was also promptly adopted. Both women had asked for abortions and, like thousands of others, they had been turned down. Unlike most of the others, though, Roe and Doe went to court to attack the state statutes that frustrated them. The resulting legal fights took too long for either woman to get any practical benefit. But last week they had the satisfaction of hearing the Supreme Court read their pseudonyms into the annals of constitutional law. By a surprising majority of 7 to 2, the court ruled that Roe and Doe had won one of the nation's most fiercely fought legal battles. Thanks to the Texas waitress and the poverty-stricken Georgia housewife, every woman in the U.S. now has the same right to an abortion during the first six months of pregnancy as she has to any other minor surgery.

So bold and uncompromising is the ruling that no state is unaffected. Most, like Texas, have permitted abortion only when the mother's life was threatened; in effect, they now have no surviving law on the subject. Other states, like Georgia, which allowed doctors to terminate pregnancies that endangered a mother's health, resulted from rape or were likely to produce malformed babies, will have to revise their laws substantially. Even the four states (New York, Washington, Hawaii and Alaska) that have allowed unrestricted abortions will probably have to make some changes. All of them have maintained residency requirements, which have now been held unconstitutional.

Privacy. Writing for the majority --and aware of the potential impact of the decision--Justice Harry Blackmun laced his opinion with a precise set of guidelines. During the first three months of pregnancy, wrote Blackmun, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." After the first trimester, a state may "regulate the abortion procedure in ways that are reasonably related to maternal health," for instance by requiring hospitalization. But to demand that a panel of doctors okay the abortion, said Blackmun, is an unconstitutional complication. Only after the fetus has developed enough to have a chance of survival on its own--usually during the seventh month--may a state "regulate and even proscribe abortion except where it is necessary. . .for the preservation or health of the mother."

The ruling was rooted in the court's view of the right to privacy. Blackmun held that such a right has now become an indivisible part of every American's "liberty," which is specifically protected by the due-process clause of the 14th Amendment. Such a protection, he indicated, more than overcomes any state interest in using abortion statutes--as so many states have--to regulate sexual conduct, however indirectly. A fetus, he added, is not a person under the Constitution and thus has no legal right to life --a conclusion that countless antiabortionists violently object to. Blackmun was also swayed by the fact that most abortion prohibitions were enacted in the 19th century when the procedure was more dangerous than now. His different standards for different stages of pregnancy are largely a reflection of medical progress. Abortion in the first three months, he pointed out, has become at least as safe as childbirth.* After that, he said, because the dangers do increase, so should the states' authority to protect the health of the mother.

The battle over abortion divided the Justices in unusually rancorous debate (see box). To Dissenters Byron White and William Rehnquist, the final decision seemed such a naked exercise of the "power of choice" that it smacked of judicial legislation. Said White: "In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the court's [determination]. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs."

If White and Rehnquist eventually wound up in lonely dissent on the court, they were soon joined by a clamor of antiabortionists across the country. New York's Terence Cardinal Cooke called the opinion "a tragic utilitarian judgment" and added that "judicial decisions are not necessarily sound moral decisions." James Lenehan, chairman of a Connecticut Right to Life committee, wondered "how the Supreme Court can at one time rule against capital punishment and then allow the wholesale slaughter of unborn children." Georgia's Right to Life chairman, Joe Bowman, was reminded "of the 1857 Dred Scott decision, which said that although he may have a beating heart and a functioning brain and be biologically human, the black man was not a legal person." More mildly, Bishop William Cannon of the United Methodist Church warned: "If this leads to promiscuity and to taking the creation of life lightly, then it is a step backward."

Stand Fast. Abortion foes promised action to match their wrath. Right to Life committees in Illinois and Texas quickly began planning a campaign for a constitutional amendment. The Roman Catholic Bishops' Committee for Pro-Life Affairs noted that "hospitals and health facilities under Catholic auspices will not find this compatible with their faith and moral convictions. We urge our doctors, nurses and healthcare personnel to stand fast in refusing to provide abortion on request." A Virginia group of Catholic laymen urged a "symbolic gesture": excommunication of William Brennan, the court's only Catholic and part of the majority. Naturally, the decision brought cheers from pro-abortionists--and equally prompt action. One shut-down abortion clinic in Detroit had equipment flown in right after the court acted and performed 20 abortions by the next evening. By week's end three more private clinics had opened in the Detroit area. The feminist Women's Health Center in Los Angeles also announced it would soon have a clinic in operation. The Planned Parenthood Federation promised to help open clinics throughout the nation so that private entrepreneurs could not inflate prices.

There will assuredly be customers.

Within hours of the court's decision, hospitals were receiving calls asking

"When can I get an abortion?" The answer to that question will vary widely from state to state, hospital to hospital, and physician to physician. Georgia quickly said that every doctor was now free to perform whatever abortions he deemed necessary. Boston Hospital for Women, the nation's oldest maternity and obstetrics hospital, also amended its policy. Many other states and hospitals are moving more slowly; despite the carefully detailed decision, they are not yet certain of the full contours of the new "right to abortion."

For one thing, it is far from clear whether a state must take positive action to make abortions available. Nowhere does the decision say that it grants a right to abortion on demand. Indeed Chief Justice Warren Burger asserted in his concurring opinion that no such right is given. What is certain is that a woman now has the right to ask for abortion, and since doctors are no longer legally restricted from performing it, most women who doctor-shop long enough will be able to get one. But it is also clear that doctors are not compelled to oblige any woman who happens to request an abortion. Attorney Margie Pitts Hames, who argued the case for Mary Doe, points out that this can be a critical factor in poor rural areas with only one doctor. That specific question was not before him, but Justice Blackmun, a former (1950-59) resident counsel at the Mayo Clinic, obviously has faith in the physician's traditional discretion. "Despite the presence of rascals in the medical profession, as in all others," he said, "we trust that most physicians are 'good.'

Heat. There were other unexplored implications as well. With the court's latest strengthening of the constitutional right to privacy, lawyers will doubtless try to use it to limit other kinds of government intrusions--a cause that is one of those closest to the hearts of conservatives. The decision also left open two lesser problems related to abortion. Washington and other states require the consent of the woman's husband, if she has one, or, in the case of a minor, the consent of her parents. The court specifically put aside the question of a father's right for another day. Nor did it discuss the minor's situation, though some legal experts concluded that parental consent can probably be required by the states, just as it now is for other surgery.

For all the uncertainties, it is clear that the U.S. now stands among those nations--Japan, India, the Soviet Union and the majority of Eastern European countries--where abortion is most free ly available. It is still too early to measure the full impact of that fact. A stark drop in adoptable babies seems certain. Perhaps, also, the need for welfare payments to dependent children will be reduced. And then there is the reaction of average Americans who can form the final court of appeal. If Catholics and other abortion foes do press strongly for a constitutional amendment, as threatened, the states could overturn the Supreme Court's ruling.

No one can predict how successful such an effort would be, but obviously the abortion decision, like those on school prayer, desegregation and criminal rights, has once again brought the court under heated criticism. To many U.S. citizens, there seems little difference between the abortion ruling of President Nixon's "strict constructionist" judges and those of the more liberal Warren era that so taxed the court's popularity. At week's end a Gallup poll reported that in a sampling taken shortly before the court's decision, 46% had favored leaving abortion to the woman and her doctor in the first three months; 45% had opposed the idea. Such a close division of sentiment can only ensure that while the matter has been settled legally, it remains a lightning rod for intense national debate.

*A recent study showed only six deaths among 73,000 legal abortions performed in 66 U.S. medical institutions in 1970 and 1971. The U.S. maternal mortality rate: 24.7 per 100,000 births.

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