ABORTION'S SHRINKING MAJORITY

By Jamie Murphy. Reported by Laurence I. Barrett/Denver and Anne Constable/Washington

Few issues have divided the nation as sharply in the past 13 years as Roe vs. Wade, the 1973 Supreme Court decision affirming women's constitutional right to abortion. Last week it became apparent that states' efforts to regulate abortion are having an equally divisive effect on the high court. In overturning a Pennsylvania law designed to discourage women from seeking abortions, Justice Harry Blackmun and four colleagues ringingly reaffirmed the court's 1973 landmark ruling. But four dissenters, including Chief Justice Warren Burger, sharply questioned the ever widening scope of Roe and subsequent decisions. If states cannot impose some limits on abortion, the Chief Justice concluded, ''I agree we should re-examine Roe.'' That narrow call on the Pennsylvania statute was part of a one-two rebuke to the Reagan Administration's support for the right-to-life movement. Two days earlier, by a 5-to-3 vote, the court restricted the Government's attempt to police the quality of medical care received by severely handicapped infants. Striking down the Administration's controversial ''Baby Doe'' regulations, the Justices ruled that the Department of Health and Human Services had no authority to pressure hospitals to treat handicapped newborns without parental consent. Solicitor General Charles Fried, who last summer argued the Administration's case for upholding the Pennsylvania law, stood up to the judicial barrage at a press conference. ''Some weeks are better than others,'' he shrugged. Seizing on Burger's support for the dissenters in the Pennsylvania decision, Fried countered, ''I think what we have here is a shift in the (abortion) balance.'' Pro-lifers swiftly followed Fried's lead, pointing out that while Roe vs. Wade had passed the court by 7 to 2, pro-abortion majorities had shrunk to 6 to 3 in a 1983 case, and last week to 5 to 4. At the convention of the National Right to Life Committee in Denver, a spokeswoman cheered, ''Seven- two! Six-three! Five-four! We are one vote away from restoring full protection for unborn children!'' National Right to Life President J.C. Willke bubbled, ''We're overjoyed with this decision. All we need is one more (Justice) and we're going to reverse this abomination.'' Yet many pro-choicers were also happy with the decisions--particularly the Pennsylvania case, Thornburgh vs. American College of Obstetricians and Gynecologists. ''I'm absolutely elated,'' said Kate Michelman, executive director of the National Abortion Rights Action League. Said American Civil Liberties Union Attorney Lynn Paltrow: ''What we have here is a majority that is clear about abortion rights and getting clearer about why abortion has to be protected by our Constitution.'' Some opinions were more qualified. ''We would have preferred a 7-to-2 decision,'' said Eve Paul, vice president for legal affairs for Planned Parenthood. ''On the other hand, I don't think the end of the world has come.'' Indeed, despite all the litigation, the number of reported abortions in the U.S. has stayed fairly steady since the late 1970s, at about 1.5 million a year. Legal experts cautioned against assuming too much from Burger's apparent defection. Harvard Law School's Laurence Tribe called the upbeat statements from pro-lifers a ''kind of premature crowing that is not warranted,'' adding that ''anyone who is thoughtful recognizes that the court is not 5 to 4 on the basic issue of Roe vs. Wade. There is no evidence that (Dissenting Justice Sandra Day) O'Connor or the Chief Justice would be prepared to overrule Roe, although both are disturbed by some of the detailed elaborations and distinctions.'' The Pennsylvania law, which was passed in 1982, would have required physicians to record intimate details about a woman seeking an abortion, including her address, age, marital status and prior pregnancies. Each report was then to be made available for public inspection. Physicians had to tell the woman about the ''particular medical risks'' of the abortion procedure, vs. those of carrying the baby to term, and offer her information describing the anatomical and physiological characteristics of her unborn child at ''two-week gestational increments.'' Pennsylvania legislators acknowledge that the law was intended to discourage women from an abortion. Writing for the court majority, Blackmun called this requirement ''nothing less than an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue.'' States are not free, he wrote, to use ''the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies.'' Rejecting Pennsylvania's argument that the regulations were in the state's justifiable interest, Blackmun concluded in what reads like a manifesto: ''Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. That promise extends to women as well as to men. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy than a woman's decision . . . whether to end her pregnancy.'' In dissent, Justice Byron White cautioned against defining ''fundamental'' liberties ''that are nowhere mentioned in the Constitution.'' Rather than imposing ''its own controversial choices of value upon the people,'' the court should return such hotly contested moral and political issues to the legislatures. The division on the court, White concluded, is ''symptomatic'' of its ''own insecurity over its handiwork in Roe vs. Wade and the cases following that decision.'' Chief Justice Burger objected not to a woman's right to obtain an abortion per se but to the scope of her freedom in seeking one. He argued that the states have a right to regulate the circumstances under which a woman may terminate a pregnancy. O'Connor disputed what she called the court majority's ''ad hoc nullification'' of a state regulation. Government intervention in deeply personal decisions was also central to the Baby Doe ruling. Baby Doe ws an infant boy born in 1982 suffering from Down's syndrome, a congenital condition characterized by mental retardation. An Indiana hospital let him starve to death after his parents decided to forgo surgery to remove an obstruction in his esophagus. Profoundly upset by the news, President Reagan ordered the Department of Health and Human Services to prevent all further instances of calculated neglect. In 1983 the department proposed a set of controversial regulations requiring child-protection agencies to police federally assisted hospitals and examine medical records to prevent willful neglect. Shortly before the regulations went into effect, a baby girl identified as Baby Jane Doe was born with severe birth defects in Port Jefferson, N.Y. After consulting doctors and other advisers, the infant's parents decided on a program of antibiotics. But they vetoed corrective surgery that would have prolonged her life and left her severely retarded. Suits filed by a Vermont right-to-life attorney who had no direct interest in the case and by HHS, acting on the basis of the Baby Doe rules, were dismissed. Ultimately, the American Hospital Association and other groups sued to challenge the validity of the regulations and end what they considered harassment. This suit was subsequently appealed to the Supreme Court. Writing for four of the Justices,* Justice John Paul Stevens noted that federal law ''does not authorize the Secretary (of HHS) to give unsolicited advice either to parents, to hospitals or to state officials who are faced with difficult treatment decisions concerning handicapped children.'' To the court's knowledge, no hospital had refused treatment sought by parents or mandated by the order of a state court, Stevens pointed out. Moreover, hospitals need parental consent to treat a minor, handicapped or not --and since parents are not compelled by law to consent to treatment, federal regulation is intrusive. Confronted by the double setback, President Reagan seemed to confuse the two rulings in his news conference last week. Asked about the Pennsylvania decision, he responded to the Baby Doe case but used words that could apply to both abortion and the handicapped: ''If our Constitution means anything, it means that we, the Federal Government, are entrusted with preserving life, liberty and the pursuit of happiness. Well, where do you draw the line? Can we say to someone, 'It's all right for you to, whatever way you choose to, dispose of this human life, and for whatever reason'? And I just don't think we're finished with this problem at all.'' As the President well knows, the majority of the Justices who voted in favor of each ruling are age 77 or older. Their decisions were obviously not the final word on these difficult issues.

FOOTNOTE: *Chief Justice Burger concurred in the Baby Doe judgment, but he did not join in the opinion or explain his reasoning.