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TIME: Almanac 1993
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1993-04-08
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THE WEEK, Page 15NATIONA Close Call
Despite restrictions, the landmark Roe v. Wade ruling is upheld
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."