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- THE WEEK, Page 15NATIONA Close Call
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- Despite restrictions, the landmark Roe v. Wade ruling is upheld
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- 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.
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- 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.
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- 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.
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- 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."
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