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High Court Upsets Ill. Curb on Teen-Agers' Abortions : Split Vote Underscores Vacant Seat

December 14, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — With a tie vote underscoring the importance of filling the vacant ninth seat in the Supreme Court, the justices today upheld a lower court ruling striking down an Illinois law that could have limited the right of some teen-aged girls to have abortions.

But the decision, which ruled unconstitutional a law requiring some girls under 18 who seek abortions to wait 24 hours after telling their parents or a judge, came on a 4-4 vote and will set no national precedent.

The high court issued no opinion in the case. The U.S. 7th Circuit Court of Appeals had said that the law impermissibly interferes with abortion rights.

Twenty-one other states, including California, have laws that require parents to be notified or to give their consent before their minor unmarried daughters have an abortion.

Many of these statutes are being challenged in court and that virtually assures that the Supreme Court will be forced to consider the question again.

After first ruling in 1973 that women have a constitutional right to an abortion, the Supreme Court has wavered on whether teen-age girls have the same right. In a series of divided rulings, the court has said that states may require a role for parents, as long as those requirements do not block or "unduly burden" a girl's decision to end her pregnancy.

Future Battleground

Since the abortion rulings affecting teen-agers have been so clouded and the votes so close, legal experts say that this issue will be a battleground for the Supreme Court over the next few years.

The tie vote underscored the importance of the ninth justice who will fill the vacant seat on the Supreme Court. Anthony M. Kennedy, President Reagan's nominee to fill the vacant Supreme Court chair, has no public record on the abortion issue. Kennedy's confirmation hearings before the Senate Judiciary Committee began just as the Supreme Court was announcing its deadlock on the abortion case.

Recent Supreme Court rulings on abortion have not dealt with direct efforts to overrule the 1973 ruling, but rather with state laws that seek to regulate physicians and clinics providing abortion services.

The Illinois Legislature in 1983 declared that doctors must give parents time for "meaningful consultation" with a daughter who is seeking an abortion. Anti-abortion activists said that this measure would promote family decision-making and avoid hasty decisions that would be regretted later.

ACLU Raises Protest

Pro-choice advocates, including the American Civil Liberties Union, said that the law was merely an attempt to make it more difficult for girls from troubled and divided homes to get an abortion.

Before the law could go into effect, the ACLU won a federal court order striking it down as an unconstitutional burden on a teen-ager's right to get an abortion. In 1986, the U.S. 7th Circuit Court of Appeals upheld this conclusion on a 2-1 vote.

The Supreme Court heard arguments in the case (Hartigan vs. Zbaraz, 85-673) on Nov. 2. After discussing the case behind closed doors for several weeks, the justices today issued a one-sentence statement: "The judgment below is affirmed by an equally divided court."

The split decision represents a tactical win for ACLU lawyers. It not only preserves their victory in the lower courts, but it disposes of a case that was not an entirely favorable one for them. Because there was no trial on the Illinois law, the pro-choice advocates were not able to cite direct evidence on how the law had hurt teen-agers who had sought abortions.

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