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Supreme Court Affirms Right to Abortion in Alowing Appellate Ruling to Stand

By Joan Biskupic
The Washington Post

WASHINGTON

The Supreme Court made it clear Monday that a woman has a constitutional right to an abortion, letting stand an appellate court ruling that struck down a Guam law making abortion a felony.

The court's order affirmed its narrow ruling last June upholding most of Roe v. Wade, the 1973 decision that made abortion legal nationwide. Combined with Bill Clinton's election as president Nov. 3, the order brings to an end two decades of contention over whether the basic abortion right is protected. It also opens a new chapter of debate over state limits on that right. The court, for example, is still expected to consider state laws that require waiting periods before abortions and pre-abortion counseling.

"The idea that women will be sent to jail because of backalley abortions now seems dead," said Harvard University law professor Kathleen M. Sullivan.

It was the first time since the landmark 1973 Roe decision that the justices declined to take a major abortion case. Three justices, William H. Rehnquist, Byron R. White and Antonin Scalia, said they wanted to hear the Guam case, Ada v. Guam Society of Obstetricians & Gynecologists. It takes four votes to take up a dispute.

The Roe ruling generated the "right to life movement," which in turn helped form the conservative engine that put Ronald Reagan and George Bush in the White House. Together, Reagan and Bush asked the court on five separate occasions over 10 years to strike down Roe v. Wade.

Monday's action on the Guam case underscores that the essence of the 1973 ruling survived both Reagan and Bush presidencies.

President-elect Bill Clinton has said he would nominate only persons who believe in abortion rights to the court. Now the controversy that overwhelmed the court -- and judicial nominations -- will take a new form. The question for the judiciary and for lawmakers nationwide is what constitutes an "undue burden" on abortion rights, the standard set in the court's June ruling on Pennsylvania abortion restrictions.

Anti-abortion groups have stepped up their activity in statehouses, and Douglas Johnson, federal legislative director with the National Right to Life Committee, said activists are trying to make sure that Congress does not go further than the high court and adopt proposed legislation that would curtail state regulations on abortion.

"The question is how many hoops and hurdles states will enact for women to go through," said Sullivan. "But the longer Roe remains the law, the harder it is to overturn it."

How far states may go in restricting an abortion right is likely to be decided on a case by case, statute by statute basis. During the 1970s and 1980s the Supreme Court continually assessed regulations, such as whether parents or husbands should be able to block an abortion, how long a woman must wait for an abortion and what information she must first receive.

But until last June's ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, such restrictions were tested against Roe v. Wade's especially high standard for any infringement on the abortion right. Under the new, slightly lowered standard in Casey, courts would weigh whether a regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion" before the fetus can live outside the womb.

In that case, the court upheld requirements that women seeking an abortion wait 24 hours after being given information about the procedure, that minors obtain parental permission and that abortion facilities fulfill certain reporting requirements. The court struck down a provision requiring that a woman seeking an abortion notify her husband.

Currently pending at the court is a challenge to a Mississippi law that requires a woman to be given information about fetal development and then to wait a day before obtaining the procedure. A federal appeals court upheld the law at issue in Barnes v. Moore and the Supreme Court is expected to decide in the next few weeks whether it will hear the case.

The 1990 Guam abortion law, which was challenged immediately after enactment and never enforced, said that the "life of every human being begins at conception, and that unborn children have protectable interests in life, health, and well-being."

The law made it a felony to perform an abortion and allowed exceptions only for etopic pregnancies and pregnancies that threaten the life of the mother.

A federal district court and the 9th U.S. Circuit Court of Appeals, based in San Francisco, ruled that the prohibition violated Roe v. Wade, and the case was brought to the Supreme Court.

In a dissenting statement from Rehnquist, White and Scalia, written by Scalia, they said they believed courts should wait to see how a statute is enforced and whether in some circumstances it could be constitutionally applied. Scalia wrote that part of the ban could be constitutional under the Casey opinion, "at least in its application to abortions conducted after the point at which the child may live outside the womb."

Both Roe v. Wade and Casey stressed a woman's ability to choose an abortion before the fetus is viable.

The three justices said they would have taken the case but then immediately sent it back to the 9th Circuit to see whether the law had any constitutional applications.

Rehnquist, Scalia and White had dissented from the Casey opinion. They were joined in that ruling by Clarence Thomas, the court's newest justice. Thomas did not sign onto Scalia's dissent Monday, and given that he earlier voted against abortion rights, his position is difficult to explain.

But if Thomas had joined with the others, they would have had the requisite four votes to take the case. One possibility is that however much these four conservatives want to end legalized abortion nationwide, they did not have the taste for another abortion conflict or feared that a majority would want to go further to make abortion available.

Maura Quinlan, a lawyer with a private firm in Harrisburg, Penn., who represented the territory of Guam, said she believed the court was leaving too many questions unanswered, notably what rules apply after a fetus is viable and how to assess serious health risks to a mother.