Harsh Days at the High Court

The Bob Jones ruling strikes against religious freedom, and the abortion decision devastates the right-to-life movement.

An article on the Bob Jones decision follows this article.

The Supreme Court delivered a devastating blow to opponents of abortion when it ruled last month that state laws restricting abortion-on-demand are unconstitutional. The six-to-three ruling reaffirmed the Court’s 1973 Roe v. Wade decision, which legalized abortion. The ruling also extended the 1973 decision considerably by nullifying state laws that require women to be hospitalized for late abortions, to be informed about fetal development, and to be given a 24-hour waiting period before going through with the operation.

However, leading the dissent was Justice Sandra Day O’Connor, who wrote a strongly worded rebuttal in which she challenges the underpinnings of the 1973 ruling and points out that it is “clearly on a collision course with itself” due to advances in medical technology. The health risks of later abortions are being reduced, she said, yet at the same time, premature babies are surviving at much higher rates, and surgical procedures on the unborn are becoming commonplace.

Leaders of the right-to-life movement, most of whom opposed O’Connor’s 1981 appointment, praised her decisive stance, one which has brought biting criticism from women’s rights groups. Five of the six justices forming the majority in this ruling are at least 75 years old, and prolife leaders believe just a few more Reagan appointments to the Court could completely alter its stand on the issue.

For the present, though, prolifers concede that prospects for the unborn are grimmer than ever. More clinics will be licensed to do more abortions, and at cheaper rates than have been paid for late abortions in hospitals. There are about 450 abortion clinics in the United States, performing most of the 1.5 million abortions each year. About half of these clinics belong to the National Abortion Federation. NAF public affairs director Jane Gruenebaum said, “We are very pleased with this decision. It will enhance health care for women.”

Under the provisions of an Akron, Ohio, city ordinance—as well as laws in about 20 other states—abortion clinics were not permitted to perform abortions after the first three months of pregnancy. The Akron ordinance also includes the other restrictions found to be unconstitutional, and it was the Court’s primary focus in this ruling. Of secondary importance were Missouri and Virginia laws that had run up against successful court challenges in their jurisdictions (CT, Sept. 3, 1982, p. 68).

Basing its reasoning on medical state-of-the-art evidence, the Court found that requiring hospitalization “imposed a heavy and unnecessary burden on women’s access to a relatively inexpensive, otherwise accessible, and safe abortion procedure. [It] has the effect of inhibiting the vast majority of abortions after the first trimester and therefore unreasonably infringes upon a woman’s constitutional right to obtain an abortion.”

The perspective in the prolife movement is far different. Christian Action Council spokesman Norman Bendroth said this reasoning favors “assembly-line abortion clinics” over the rights of women and the unborn. “Now states will have to license facilities not able to handle emergency situations,” he predicts. Although the ruling dealt specifically with laws in three states, all similar state laws have been effectively nullified.

The O’Connor dissent faults the majority’s reasoning on the hospitalization requirement because it blurs the clear 1973 distinction drawn between the first and second trimesters of pregnancy. “The Court’s framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes ‘accepted medical practice’ at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards.”

In perhaps her most significant statement, O’Connor pointed out the fallacies of a court trying to determine arbitrarily when state interests in protecting life begin to supersede a mother’s “right to privacy.” She wrote, “Potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life.… Accordingly, I believe that the state’s interest in protecting potential human life exists throughout the pregnancy.”

The right-to-life movement is increasingly concerned with the women whom they see as victims of easy abortion, and its spokesmen are deeply grieved about the Court’s ruling against “informed consent” provisions. In the Akron ordinance, these included requirements that physicians tell their patients about the unborn child’s physical development, appearance, and sensitivity to pain, as well as the complications that an abortion may cause and the alternative of adoption. The Court ruled that these state requirements are “designed not to inform the woman’s consent but rather to persuade her to withhold it altogether.”

The majority ridiculed the provisions as “a parade of horribles” and objected because they intrude upon “the discretion of the pregnant woman’s physician.” Similarly, a 24-hour waiting period required by the Akron ordinance was found unconstitutional, mainly because it would increase the expense of an abortion by requiring two separate visits to the hospital or clinic. The decision assumes that “in accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her.”

Nancyjo Mann, president of Women Exploited by Abortion (WEBA) was outraged by this part of the decision. Before her abortion in 1974, Mann recalls being told by her doctor that the procedure would involve removing some fluid, adding some fluid, her experiencing cramps and then expelling the fetus. “I was never told,” Mann said, “that for an hour and a half I would feel my daughter thrash around violently while she was being choked, poisoned, burned, and suffocated to death” by a saline solution. Within a year, Mann had to have a complete hysterectomy because of complications from her abortion, ending her ability to bear children.

Her work with WEBA puts Mann in touch with thousands of women in 26 states who bitterly regret their abortions. She estimates that if informed consent provisions were legal, the abortion rate would drop 80 percent. Gruenebaum, at the National Abortion Federation, countered by saying, “Our facilities spend a considerable amount of time explaining the procedure. We believe very strongly in spending time with women. We opposed the informed consent provisions before the court because they were, in many cases, untruthful and biased.”

The court also ruled that it is unconstitutional for a state to require parental consent for abortions desired by girls under age 15, because this makes “a blanket determination that all minors under the age of 15 are too immature to make an abortion decision.” The Akron ordinance required physicians to dispose of aborted babies in “a humane and sanitary manner,” and this too was found to be unconstitutional.

This sweeping ruling establishes abortion as a “fundamental right” that cannot be burdened by any sort of intermediate regulation. To Douglas Johnson at the National Right to Life Committee, it “demonstrates the extremism of the court on abortion. It underscores the need for congressional action and the appointment of judges who will not impose their extremism on the nation.” For prolifers, it is expected to add momentum to a stymied effort to pass legislation declaring that life begins at conception, or a constitutional amendment to overturn the 1973 ruling.

“We need to stick Roe v. Wade under the court’s nose,” said Bendroth, of Christian Action Council. “They didn’t really face up to the humanity of the unborn and won’t until Congress tells them they erred in 1973.”

BETH SPRING

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