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Supreme Court Denies Review of Mississippi Abortion Case

By Joan Biskupic
The Washington Post


One week after it reaffirmed a woman's basic right to abortion, the Supreme Court Monday effectively made it easier for states to impose waiting periods and other restrictions on women who want to end their pregnancies.

The court's one-sentence order denying review of a Mississippi case set back abortion-rights activists, who now will have more difficulty challenging state abortion restrictions. It also opens the door for a new era of litigation as the courts define when a woman faces an "undue burden" -- the court's new legal standard -- in trying to obtain an abortion.

Equally important, Monday's order implies that once an abortion restriction is upheld in one state, other states may implement it unless individual cases can be made that it infringes on a right to abortion. Some constitutional experts say this signals a change because most abortion laws since 1973 came to the Supreme Court under general challenges soon after they were enacted.

Instead of fighting an abortion law when it is passed, women would have to submit to state regulations and challenge laws only after gathering evidence of their potential infringement on the right to abortion, according to abortion rights activists.

In Monday's dispute, the court let stand a Mississippi requirement that women seeking abortions in one of the state's three clinics first be told about maternal health risks and fetal development, then wait 24 hours.

Mississippi officials argued that the required abortion counseling and waiting period is necessary so that women are able to fully understand the medical risks of abortion, compared with childbirth, and to know the age of the fetus.

But the physicians who challenged the law contended that the requirement was too onerous for poor women who must travel long distances to abortion clinics. The effect of Monday's order "is women who saved up their nickles and dimes, saved up their sick-days, will have to go twice (to a clinic) or stay over night," said Rachael N. Pine, a lawyer with the Center for Reproductive Law & Policy in New York, who represented three Mississippi doctors who challenged the law.

The Mississippi waiting-period, which took effect last August, is comparable to a Pennsylvania law upheld last June.

The Supreme Court said at that time that the Pennsylvania law did not present an undue burden for women seeking abortion. But the Mississippi physicians who challenged a similar law in their state said that a waiting period might be more onerous in Mississippi because of different conditions in that state, notably its rural character and high incidence of poverty.

Monday's court order followed by one week a court decision not to revive a ban on abortions in the territory of Guam. That order effectively affirmed earlier rulings that abortion is a constitutional right and sent a message that abortion prohibitions will not stand.

The remaining, overriding question is how far states may go in regulating an abortion right and how much they ultimately may infringe on Roe v. Wade, the 1973 landmark ruling that made abortion legal nationwide.

Monday's order, far from the last word on the issue, appears to indicate that not only will states have an easier time adopting regulations than they did under the Roe standards, but also that it would be easier than was first thought when the court issued its new abortion guidance in last June's Planned Parenthood of Southeastern Pennsylvania v. Casey.

University of Chicago law professor Cass Sunstein said the court's position Monday, allowing lower courts to forego evidentiary hearings, "suggests that the `undue burden' test (of Casey) leaves considerable room for state regulation."

Mississippi order in Barnes v. Moore also shows that the coalition of Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter, which effectively blocked the court last term from reversing abortion rights, cannot always be relied on to rescue the interests of abortion activists.

"If women across the nation are counting on O'Connor, Kennedy and Souter always agreeing, then we have nothing," said Pine.

T. Hunt Cole, Jr., special assistant attorney general in Mississippi, said that if the court had taken the case, and allowed Mississippians to challenge a law that had been upheld in Pennsylvania, the end result could be different standards among the states.

"I think legislators would have been totally confused," Cole said.

The "undue burden" test of last term's Planned Parenthood of Southeastern Pennsylvania v. Casey requires a less scrutinizing look at a state law than Roe v. Wade dictated.

But how much lower is still uncertain. The court said an undue burden is one that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion" of a fetus that is not yet viable, that is, cannot live outside the womb.

Using that standard last June, the court upheld the 24-hour Pennsylvania waiting period and regulations that minors obtain parental permission for an abortion and that facilities fulfill certain reporting requirements. The court struck down a Pennsylvania provision requiring that a woman seeking an abortion notify her husband.