THE SUPREME COURT'S decisions this week put the abortion issue squarely back into the public arena - which is to say, the U.S. Congress and state legislatures. That may be the best place to resolve it in a democracy, for it is an issue in which religion and emotion and deep personal conviction count for more than a literal and arbitrary reading of the law. True, the solution is not much easier to legislate than it is to adjudicate. But we have some sympathy with the Court's decision to hand back to the legislative process a problem that legislators, out of their own desperation, had tried to pass off to the courts. Elected officials, in our view, have acquired a bad habit in recent decades of bucking to the judges the more divisive questions of the day.
The Court has left the abortion issue in a relatively straightforward position with respect to the law. What the court is saying is that 1) women have a clear constitutional right to terminate pregancy by abortion, at least through the first three months; 2) government cannot stop them from having abortions for any reason that may appeal to them; but 3) the government is not required to provide either the funds or the facilities that make abortions financially possible for many women. Left somewhat ambiguous by the Court's decisions are whether a government can deny funds and facilities for abortions that a doctor certifies are medically necessary or whether government can define "medically necessary" so narrowly as to eliminate almost all abortions.
There is much logic and history to support the Court's central determination that the equal-protection clause is not abridged by the refusal of government to fund abortions for the poor, although this is a retreat from some of the language in past decisions. The ruling does, however, create a fundamental - and, in our view, unacceptable - inequity. It leaves a state of affairs in which poor women may be unable to exercise their right to an abortion while rich women can. Justice Powell's opinion does present a convincing argument that the Constitution does not require government to support financially the exercise of all rights even though it is barred from interfering with their exercise. Government, for example, is not required to provide a forum from which you can exercise the right of free speech or a printing press so that you can exercise freedom of the press.
But we are stunned, nonetheless, by the casualness with which the Court used this principle to justify its decision that a city or state may close its public hospitals to nontherapeutic abortions. The Court did so in an unsigned opinion of less than three pages, which provided precious little explanation of its ruling and gave no consideration at all to its implications. What it has done in those communities where publicly owned hospitals are the only ones readily available is to put the ability of all women to exercise their right to an abortion up to the decision of a government official or to a popular vote. It is rare in American judicial history for the Court to subject the exercise of an acknowledged right to such vagaries.
There is a solution. It is for Congress to face the abortion issue squarely - to accept it as a problem that, for better or worse, is not going to be entirely resolved in a fair and effective manner by the courts. Once that's accepted, the Congress has no choice, in our view, but to direct that Medicaid funds be made available to pay for abortions, rather than trying to put limitations and restrictions on such operations. Any other action will create a class distinction based solely on wealth.
The law is now clear: The decision on whether to have an abortion during the first three months of pregnancy rests with the women concerned. Some women have the means to make that decision freely, insofar as the cost of the necessary medical care and facilities is a factor. But those without the means - those dependent on government programs for their medical needs - cannot choose freely unless the government or someone else makes the funds and facilities for abortions available. A decision by Congress to restrict abortions would write into American law the "majestic equality" about which Anatole France wrote so bitterly. It would state, as the policy of the U.S. government, that women in this country have a constitutional right, upheld by the Supreme Court, to choose for themselves to have an abortion if they want one, but only if they have the money - or can beg, borrow or steal enough to pay for it. Such a policy would not do credit to a nation that prides itself on the individual right of its citizens to live freely and to determine, to the utmost extent possible, their own destinies.