THE JUSTICE Department has signaled a new and dangerously sweeping approach to Supreme Court litigation on a critical constitutional issue. While it has always been clear that the administration opposes abortion and deplores the Supreme Court decision in Roe v. Wade, the department had, in earlier cases, accepted the decision and simply supported the position of states testing the limits of the edict. Now, in a brief involving Illinois and Pennsylvania statutes, the department has asked the court to abandon the 1973 decision and return the regulation of abortion to the states. It is, legal scholars say, the first time the government has asked the court to rescind a federally guaranteed right.
The court strongly reaffirmed Roe only two years ago in a case from Akron, Ohio, and the composition of the court has not changed since that time. So there is little likelihood that the administration's effort will succeed. Why, then, have its lawyers gone so far out on a limb? Filing this brief may simply demonstrate solidarity with right-to-life groups, or reflect a desire to be forthright in the context of this litigation on a position that has been frequently stated in political forums. The administration doesn't really believe, after all, that state waiting periods or rules about medical personnel are the essential issues. Its partisans want individual state legislatures, not courts, to decide whether abortions should be legal. Now it is ready to carry that position, with all its implications, to the courts.
The department's brief is an important statement of where the administration wants to go. While the chances are slim that the court will adopt its position, the consequences of such a shift need to be fully understood. They would be devastating. It is not hard to imagine the bitterness and divisiveness of 51 separate legislative struggles on an issue thought to have been settled a dozen years ago. Litigation would begin all over again on dozens of new statutes. Some women would be forced to travel long distances for legal abortions; others, without financial resources, would turn to the old and dangerous methods of earlier generations. The court should reject this retrogressive proposal and spare the country the trauma of unwisely disturbing settled law.