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- <text id=90TT1797>
- <title>
- July 09, 1990: The Justice In The Middle
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1990
- July 09, 1990 Abortion's Most Wrenching Questions
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- NATION, Page 27
- The Justice in the Middle
- </hdr>
- <body>
- <p>For both sides in the abortion debate, O'Connor is a moving
- target
- </p>
- <p> For good reason, Sandra Day O'Connor is known as the
- abortion swing vote on the U.S. Supreme Court. In two of the
- cases last week involving parental notification, O'Connor
- swayed between the court's evenly balanced liberal and
- conservative wings. She joined court liberals in a 5-to-4
- majority that overturned the Minnesota law requiring
- adolescents to inform both parents before obtaining an abortion.
- Then she moved rightward to give conservatives a 5-to-4
- majority that approved the Minnesota law that offers minors the
- option of getting permission for abortion from a judge.
- </p>
- <p> Peregrinations such as these have made O'Connor a moving
- target for antiabortion forces, who are determined to see her
- provide the decisive fifth vote to overturn or at least
- neutralize Roe v. Wade. Their goal is to send before the court
- a succession of laws that will chip away at her ill-defined
- middle ground, until it is too narrow to stand on.
- </p>
- <p> Though she has been unwilling to overturn Roe altogether,
- O'Connor has voted in favor of several state laws that would
- restrict abortion. She wrote in a 1983 decision that she could
- accept such limitations so long as they were not "unduly
- burdensome" to a pregnant woman. That left open a big question:
- Just what burdens would the Justice consider too heavy? "This
- legal fight over abortion is like a game of stud poker," says
- Roger Evans, an attorney for the Planned Parenthood Federation
- of America. "Each decision forces Justice O'Connor to turn over
- one more card revealing what she's got in her hand."
- </p>
- <p> The game has been played for higher stakes since the Webster
- case last year, in which the court gave states wider latitude
- to restrict abortion. O'Connor's position was more decisive--and uncomfortable--than ever. She voted in favor of the
- Missouri statute under review (which forbids the use of state
- funds for abortions). But she balked at the opportunity to let
- history record that the Supreme Court's first woman was also
- the one who provided the crucial vote to end abortion rights.
- "There will be time enough to re-examine Roe," she wrote, "and
- to do so carefully."
- </p>
- <p> It may be that no amount of pressure will persuade O'Connor
- to overturn Roe altogether. As a result, pro-life groups are
- urging state legislatures to pass laws that will meet her
- "undue burden" test, placing crippling restrictions upon
- abortion without making it illegal. After examining O'Connor's
- opinions, the National Right to Life Committee last year
- drafted eight model laws for consideration by states, each
- designed for maximum appeal to her. "We are trying hard to
- avoid sending O'Connor tough cases," says Burke Balch, an
- attorney for the group. "We want the most moderate legislation
- possible that will still be effective in preventing abortion."
- </p>
- <p> One such bill attempted to meet her concerns by shifting the
- burden from the woman to her physician. The bill would make it
- a crime to perform an abortion but not necessarily to obtain
- one. A statute based on that notion was adopted in March in
- Idaho but was vetoed by Governor Cecil Andrus. So far, the
- model-legislation tactic has met with limited success elsewhere
- too, largely because a pro-choice voter backlash has given
- state lawmakers second thoughts. Though 350 abortion-related
- bills were introduced around the country after Webster--not
- all of them based upon the Right to Life group's suggestions--only four were adopted, and one of those, Idaho's, was vetoed.
- </p>
- <p> Both sides of the abortion divide could draw hope from
- O'Connor's rulings last week on parental notification. Her vote
- to strike down one version of the Minnesota statute represented
- the first time on the court that she has raised an objection
- to any law restricting abortion. But the terms she used to
- examine the law seemed to undermine the very notion of abortion
- as a constitutional right.
- </p>
- <p> O'Connor stressed that the judicial bypass was needed to
- meet the state's declared goal of ensuring closer family ties.
- Otherwise teenagers from broken homes would have to track down
- and inform absentee parents, with results that might not do
- much for family harmony. Such an approach made it appear that
- O'Connor was asking the state merely to prove its statute was
- "reasonable," a less stringent legal standard than the
- "compelling state interest" that courts ordinarily require
- government to prove before they okay laws that restrict
- fundamental rights.
- </p>
- <p> Pro-choice groups took solace in the fact that the Minnesota
- law involved juveniles, whose rights under law have always been
- more limited than those of adults. "We still won't know what
- O'Connor believes about undue burdens until we get a case that
- involves states directly regulating the abortions of adult
- women," says Dawn Johnson, chief attorney for the National
- Abortion Rights Action League. For a while, at least, the
- court's swing vote may still be up in the air.
- </p>
- <p>By Richard Lacayo. Reported by Jerome Cramer/Washington.
- </p>
-
- </body>
- </article>
- </text>
-
-