The Supreme Court, trying to concentrate and condense all the confusion in the universe into its rulings about abortion, has ruled (5-4) that a woman considering an abortion has a constitutional right not to be ''intimidated'' by being provided information about that choice.
A 1982 Pennsylvania statute required, among other things, that a woman must be told: that there may be ''detrimental physical and psychological effects''; the medical risks of the particular abortion procedure and of carrying the child to term; the probable gestational age of the fetus; the availability of assistance for prenatal, childbirth and neonatal expenses; that the father must assist child support.
The statute also required that the woman be informed of state publications that describe the fetus and list agencies offering alternatives to abortion. The material must describe the ''probable anatomic and physical characteristics of the unborn child at two-week gestational increments,'' and must contain the statement that many agencies exist to help the woman keep her child or place the child for adoption and ''the Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion.''
Justice Blackmun (joined by Brennan, Marshall, Powell and Stevens) noted that the court had previously ruled unconstitutional the provision of information by the state, that the state hopes will ''persuade'' a woman to choose an alternative to abortion. By 1981, the court decided that a state had, well, an unconstitutional frame of mind if it hoped to persuade a woman not to choose an abortion. In 1981, the court also held that requiring the provision of information about the nature of and alteratives to abortion ''intrudes upon the discretion of the physician.''
Hmmmmm. Presumably that violates the physician's constitutional right of privacy.
Now Pennsylvania is found to have violated the Constitution with ''intrusive informational prescriptions.'' Ponder that phrase.
The woman's privacy right now involves a right not to have information other than that produced at the physician's discretion. Blackmun says that providing facts about fetal characteristics may ''confuse'' the woman and heighten her anxiety. That frail vessel, woman, now has a constitutional ''privacy'' right to be protected against information that might confuse her.
Blackmun says that even information about alternatives to abortion ''places the physician in an awkward position.'' Now there is a constitutional right of physicians not to feel awkward. Besides, says Blackmun, the information is not ''always relevant.'' Now there is a constitutional ban on information that is not invariably ''relevant.''
In 1973, when the court discovered a ''privacy'' right that rendered the abortion laws of 50 states unconstitutional, it said the right to an abortion ''is not unqualified'' and must be weighed against important state interests, one of which is ''protecting the health of the pregnant woman.'' In 1986, the court says a state is constitutionally forbidden to provide even accurate medical information about risks in abortion -- the sort of information a state could provide concerning any other medical procedure.
In 1973, the court said states have a ''compelling interest'' in protecting fetal life after it has reached ''viability.'' In 1986, the court finds unconstitutional Pennsylvania's requirement that a second physician be present during an abortion performed after viability, to care for a child born alive. Is there a ''privacy'' right to a dead fetus? And what has become of the 1973 holding that a state may forbid all third trimester (the viability criterion) abortions except when the abortion is necessary to protect the health of the mother?
In 1973, the court, with its morally and medically meaningless distinctions between the trimesters of pregnancy, effectively legislated a universal right to unlimited abortion on demand. In 1986, the court is saying that it is unconstitutional for a state to influence the demand by providing information.
In 1973, the court said a state has a legitimate interest in ''protecting the potentiality of human life.'' In 1986, the court says it is unconstitutional for the state to present information on alternatives to abortion.
The 1973 decision has been defended in terms of ''freedom of choice.'' Now it is construed to proscribe, in the name of that freedom, provision of information by the state that might make childbirth seem an acceptable alternative to choice.
How did we come to the point where the Constitution is construed to forbid the provision of accurate information? Consumer-protection laws require all sorts of safety and other information to be given to consumers.
Manufacturers and advertisers of cigarettes are compelled to provide health-risk information. Citizens have a right to choose to see pornographic movies, but governments have a right to try to influence that choice by confining such movies with zoning regulations.
Abortion, however, is now the premier American right, constitutionally protected against any government action that might influence the exercise of the right. The right to abortion, created by judicial arbitrariness, is, 13 years later, the subject of judicial fanaticism.