A Close Call

No sooner had the Supreme Court announced that it was narrowly upholding Roe v. Wade, the landmark 1973 case that found a constitutional right to abortion, than both pro-choice and pro-life forces were bitterly denouncing it. The decision hewed carefully to the middle ground between the two groups. Yet, coming from a court dominated by conservatives, it was actually a remarkable declaration of judicial independence.

Though all three co-authors of the majority decision were appointed either by Ronald Reagan (Anthony Kennedy and Sandra Day O'Connor) or by George Bush (David Souter), their decision proved that presidential efforts to give the high court a particular ideological tilt can be a very inexact science. In the past 12 years, Reagan and Bush sent five Justices to the Supreme Court, enough for a majority, and all were expected to vote against Roe.

Asserting that the very legitimacy of the court's role in establishing precedent was at stake, the three-Justice opinion -- concurred in by Harry Blackmun and John Paul Stevens -- stated, "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code." Despite this affirmation of Roe, the court permitted greater restrictions on abortion by the states. In a 7-to-2 vote, the three were joined by Justices William Rehnquist, Antonin Scalia, Clarence Thomas and Byron White (all of whom had scathingly dissented from the affirmation of Roe) in upholding provisions of Pennsylvania's law. Among them: a requirement that teenagers show the consent of one parent or a judge, and another that stipulates a 24-hour waiting period for a woman after hearing a presentation from her doctor of alternatives to abortion. The court found that these restrictions did not impose an "undue burden" on abortion. The court, however, struck down a provision that would have required women to inform their husbands.

The next legal arena is likely to be state legislatures. While states will not be able to ban abortion outright, many are expected to push through restrictions like those in Pennsylvania. In anticipation, Senate and House committees immediately approved versions of a Freedom of Choice bill, which would establish a federal right to abortion. While both chambers are expected to pass such a bill, Bush is certain to veto it, ensuring that abortion will be a major issue in the presidential election. At stake, of course, is the right to name future Justices -- and as Blackmun, the original author of Roe, pointed out, the case is only one vote away from being overruled. "I am 83 years old," he wrote. "I cannot remain on this court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." (See related stories beginning on page 28.)