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TIME: Almanac 1993
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TIME Almanac 1993.iso
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1992-08-28
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NATION, Page 27The Justice in the Middle
For both sides in the abortion debate, O'Connor is a moving
target
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.
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.
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."
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."
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."
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.
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.
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.
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.
By Richard Lacayo. Reported by Jerome Cramer/ Washington.