WASHINGTON — The Supreme Court, sharply divided again on an issue it has confronted seven times in the last 14 years, ruled Monday that a state may require a minor to notify both her parents before obtaining an abortion--provided it gives her the option of seeking permission from a judge instead.
The ruling, relatively narrow in its reach, underlines how contentious the abortion issue has been for the court and how deeply the justices have been drawn into making fine distinctions between which abortion regulations pass constitutional muster and which do not.
At issue was a Minnesota law requiring notification of both parents--although not their permission--before an abortion, even if the parents are divorced or if one parent has long been estranged from the pregnant girl. The drafters of the Minnesota law, in anticipation of court challenges, inserted a provision permitting a so-called "judicial bypass" of its parental notification rule if the courts should require it.
On Monday, Justice Anthony M. Kennedy, joined by Chief Justice William H. Rehnquist and Justices Byron R. White and Antonin Scalia, voted to uphold the law without requiring the option of seeking a judge's permission instead of notifying both parents.
Justice John Paul Stevens, along with Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun, voted to strike down the law entirely.
Justice Sandra Day O'Connor, in her now customary role as the court's swing vote on abortion, cast the deciding vote. She ruled that Minnesota may keep its notification rule but only by providing the "judicial bypass."
The high court already has issued rulings that bar states from giving parents an absolute veto over a teen-age girl's decision to obtain an abortion. On the other hand, the court has upheld laws that require notification of one parent.
In a second case Monday, the court upheld a similar judicial bypass plan from Ohio on a 6-3 vote. Abortion rights activists had challenged several aspects of the plan, saying that it was too burdensome to teen-agers seeking abortions. Brennan, Marshall and Blackmun dissented from the decision, written by Kennedy.
Despite the limited scope of the Minnesota decision, both sides in the highly political abortion debate seized on it as an occasion to rally their troops by declaring the future of legal abortion in the United States to be in jeopardy.
Monday's 5-4 ruling "represents further evidence that Roe vs. Wade will sometime soon slip into the history books," said Gary Bauer of the anti-abortion Family Research Council, referring to the 17-year-old high court decision that first established a constitutional right to an abortion. "We're very gratified," Bauer said.
"One more Supreme Court appointment by an anti-choice Administration, and the right to choose safe, legal abortion will be history," Kate Michelman of the National Abortion Rights Action League declared in a statement. The ruling is "tremendously alarming."
The Minnesota case stems from that state's desire to go further than other states by requiring notification of both parents. Opponents of the law argued that, for many teen-agers, notifying both parents could be impossible, or in some cases dangerous.
During the five years--1981 through 1986--in which the Minnesota law was in force, 3,573 girls in the state sought judicial approval to have an abortion without telling their parents. Only nine were turned down, and six withdrew their petitions before the judge decided.
At the same time, many teen-agers--particularly in rural areas--were delayed in or prevented from having abortions because of the added burden of meeting the law's requirements, according to findings by the lower courts that reviewed the law.
Of the roughly 1.5 million legal abortions performed annually in the United States, 180,000--about 12%--have been on minors.
Currently, 33 states, including California, have laws that require girls younger than 18 to notify a parent before having an abortion, according to a survey by the American Civil Liberties Union's Reproductive Freedom Project. Minnesota's was considered the most stringent such law because it required that both parents be told and provided virtually no exceptions.
But, of the states with notification laws, only 11, mostly in the South and Midwest, currently enforce the statutes. In 14 states, including California, notification laws have been blocked by courts, and eight more states that have such laws generally do not enforce them.
Monday's ruling has no direct effect on the California law, which has been blocked since 1987 on grounds that it conflicts with privacy rights guaranteed by the state Constitution, rather than the federal Constitution. A state court is likely to conduct a trial early next year to consider whether to make permanent the current order blocking the notification law. Under the current court order, pregnant California teen-agers may obtain an abortion without notifying either parent.
"Here in California, access to abortion is still guaranteed by the state Constitution," said Margaret C. Crosby, staff attorney for the American Civil Liberties Union of Northern California.
Although the Minnesota law does not require a girl age 17 or younger to get her parents' permission for an abortion, it does say that she must tell both of them and then wait 48 hours before having the operation. The law provided a few exceptions--if an emergency abortion is needed to save a girl's life or if a girl tells authorities that she is a victim of child abuse or neglect.
A separate section of the law provides for a judicial bypass that allows teen-agers who want to tell only one parent or who do not want to inform either of them to get a judge's approval to have an abortion. The law specified that the bypass provision would go into effect if the courts did not approve the notification requirement standing alone.
Staff writer Philip Hager in San Francisco contributed to this story.