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High Court Affirms Right to Abortion, but Allows Some Restrictions by States : Law: The majority rules that regulations may not impose an 'undue burden' on a woman's right to terminate a pregnancy. Four justices favor overturning Roe vs. Wade and allowing states to outlaw abortion.

June 30, 1992|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — The Supreme Court, in a 5-4 decision, Monday upheld the power of states to impose limited restrictions on abortion but reaffirmed the basic principles laid down in Roe vs. Wade, saying that state regulations may not impose an "undue burden" on a woman's right to terminate an unwanted pregnancy.

"A state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability," Justice Sandra Day O'Connor said for the court. "The central holding of Roe vs. Wade must be reaffirmed."

At the same time, the court said that states may impose restrictions related to health and other matters, so long as the regulations do not "place a substantial obstacle in the path of a woman seeking an abortion."

Specifically, the justices upheld most provisions of a Pennsylvania statute that, among other things, establishes a 24-hour waiting period for adult women seeking abortions and requires teen-agers to get the consent of a parent or a judge before ending a pregnancy.

But they struck down a provision requiring a woman to notify her husband of her plans, citing it as an example of an undue burden.

Joining O'Connor in the majority were Justices Harry A. Blackmun, author of the 1973 Roe decision, Anthony M. Kennedy, David H. Souter and John Paul Stevens.

In dissent, Chief Justice William H. Rehnquist was joined by Justices Antonin Scalia, Clarence Thomas and Byron R. White in declaring that he was prepared to overturn Roe vs. Wade entirely and permit states to outlaw abortion.

Monday's ruling, in this year's most closely watched case, undercuts for now the movement to enact ever-stricter regulations on abortion and appears to invalidate recent laws in Utah, Louisiana and the territory of Guam that make most elective abortions a crime.

Yet the new legal framework set by the court--although seemingly designed to reduce the level of controversy by setting out a detailed explanation of the court's views, is likely to spur a series of new legal challenges and state legislative battles.

Nor is it likely to remove the issue from the realm of electoral politics.

The ruling, however, does end the high court's term on a surprising note. As with last week's decision invalidating prayers at a public school graduation, the 5-4 majority reaffirmed a controversial precedent, rather than undercutting it as many had expected.

Advocates on both sides of the abortion dispute were thrown off stride by the decision.

James Bopp Jr., general counsel for the National Right to Life Committee, called the ruling "a major loss. This court has given us very little hope that anything can be done about the basic problem of abortion on demand."

Kathryn Kolbert, the lawyer for the Planned Parenthood clinics that challenged the Pennsylvania law, also described the decision as a setback because the justices said that they no longer would strike down all regulations affecting abortion.

"Nevertheless," Kolbert said, "we are gratified that they did not go as far as they could have gone in taking away rights from all American women."

Neither side had predicted that the court might use the Pennsylvania case to explicitly reaffirm the Roe decision. Rather, opponents and supporters of the original decision had anticipated that the court would narrow the right to abortion somewhat this year and possibly overturn the right in a subsequent case.

Instead, the ruling appears to foreclose the possibility of outright repudiation of Roe, at least until the makeup of the court changes again. The five justices in the majority said they would stand behind the abortion precedent, though activists on both sides noted that a new justice could tilt the balance on the abortion issue.

Still, Monday's decision marked a clear triumph for O'Connor, the only woman ever to serve on the high court. She has persistently sought the middle ground on an issue that activists on both sides have repeatedly painted in absolute terms. Liberals have insisted that almost no regulation could be permitted, whereas conservatives have argued that almost any state regulation, including a criminal ban on abortion, should be permitted.

Confounding expectations, O'Connor found two new allies for her moderate view: Kennedy and Souter. Together, they fashioned a 60-page opinion that preserves for women the basic right to choose but allows state officials more leeway in setting regulations.

In a dramatic scene in the courtroom Monday, the three took turns reading parts of their opinion from the bench.

"Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision," O'Connor said. "Our obligation is to define the liberty of all, not to mandate our own moral code . . . . The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."

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