TWO OF the Supreme Court's decisions on Monday appear on the surface to give some substance to Peter Finley Dunne's statement that the justices follow the election returns. With much talk about the importance of families, the court refused to strike down a Utah law that forbids a doctor to perform an abortion on a minor child until her parents are told about the pregnancy. With almost as much talk about the need to deter teen-age pregnancies, the court upheld the California statutory rape law.
Does this mean the court, feeling pressure from the anti-abortionists and those who think the equal rights drive has gone too far, is backing off? The fine print in the decisions does not bear that suggestion out. The justices reaffirmed their position that the ultimate choice about abortions rests with pregnant women, not their parents. And the tortured logic through which they upheld that rape law leaves intact the legal theory often used to strike down many other gender-based laws.
In the Utah case, Chief Justice Burger crafted an opinion so narow in scope that it requires doctors to notify parents about abortion requests only of minor women who are immature, live at home, depend on their parents for support and are on reasonably good terms with them. He noted that Utah didn't bother to appeal a lower court decision holding unconstitutional the same notification procedure as it applied to "emancipated" minor women. His language, and that of other justices, hints the same fate is in store if Utah enforces the law in cases involving mature or independent young women or, perhaps, even those alienated from their parents.
Justice Rehnquist's effort to explain why statutory rape laws are constitutional doesn't even fare that well. These are laws that make it a crime for males to have sexual relations with minor females while not making the same act a crime for minor females or for adult females whose partners are minor males. The discrimination in those laws is so obvious that 37 states have changed them to make them gender-neutral. But to Justice Rehnquist, this discrimination is justified by the desire of states to prevent teen-age pregnancies. The sex act has to be made a crime to deter men from committing it was minor women, his logic asserts, while teen-age women are adequately deterred by the possibility of pregnancy. Never mind that a million or so teen-age girls become pregnant each year.
Because Justice Rehnquist culd get only three other votes for his peculiar view, his opinion has no value as a precedent and is most likely an aberration in the court's historical record.