The Supreme Court's abortion ruling Wednesday has been called a triumph for women's rights, for the "rule of law" and, by its critics, for the rule of judges.
It was also a smashing victory for the rule of doctors. That is because the court overturned an Akron, Ohio, abortion ordinance largely on the advice of physicians, invalidating in the process at least 33 laws (22 requiring second-trimester hospitalization and 11 requiring pre-abortion waiting periods) enacted by state legislatures across the country.
But what was truly extraordinary about the court's approach to the case was that it was so ordinary. The court, with the full support of relatively conservative justices such as Lewis F. Powell Jr., who wrote the opinion, and Chief Justice Warren E. Burger, applied the same analysis to the abortion question that it has applied for years to other "fundamental rights," such as freedom of speech and of religious practice. The analysis treats encroachments into that right with what Powell called a "searching" scrutiny that few restrictions can survive.
For abortion opponents, this was the greatest defeat of Wednesday's ruling. The right to an abortion, 10 years after it was established, was treated like any other right. It is now clearly tamper-proof in state legislatures and city and county councils. The ball now bounces back to Congress and the national electoral process.
Beyond that, the court appeared to have modified slightly, but significantly, its statement in 1973 on the question of "when life begins." In the 1973 case legalizing abortion, the court said that "we need not resolve the difficult question of when life begins." This time, Powell wrote that "a state may not adopt one theory of when life begins to justify its regulation of abortions." That statement undoubtedly will be used to attack congressional proposals that, in effect, adopt the theory that life begins at conception as a way of getting around the 1973 ruling.
In analyzing the laws at issue, the court first determined that they significantly restricted access to abortions. The justices, citing the weight of medical opinion, then shot down the argument by the laws' supporters that they were somehow necessary to protect the health of women. The court said, in effect, that the argument was weak or even phony--a cover for the true purpose of the restrictions: to keep women from having abortions.
The footnotes cite not law reviews and legal treatises but the American Public Health Association, the American College of Obstetricians and Gynecologists, Grimes and Cates' article on dilation and evacuation, and the Joint Commission on Accreditation of Hospitals.
The rhetoric of the opinion speaks as much to the needs of the medical profession as it does to the needs of women. The states' discretion to regulate abortion does not "permit it to adopt abortion regulations that depart from accepted medical practice," Powell wrote for the 6-to-3 court majority.
The Akron ordinance required the recitation of anti-abortion material to women. This is wrong, the court said, because it is an "intrusion on the discretion of the pregnant woman's physician.". The 24-hour waiting period was struck down because, "in accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her."
The court applies the same methodology to other constitutional issues and calls it "strict scrutiny." The alternative is a much less taxing inquiry to determine only if a restriction is "rationally related" to some government purpose.
The difference is more than one of semantics. Laws examined under the former approach often are struck down. Laws analyzed under the latter generally survive. It is often the difference that shifts authority from the legislatures to the courts.
Justice Sandra Day O'Connor's dissent, joined by justices William H. Rehnquist and Byron R. White, said that the regulations at issue were not so burdensome on women as to be judged by this "severe" test. She suggested that only "absolute" obstacles to abortion should be judged that way.
"We must keep in mind," O'Connor said, "that when we are concerned with extremely sensitive issues, such as the one involved here, 'the appropriate forum for their resolution in a democracy is the legislature. We should not forget that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts,' " she said, citing a previous court decision.
Powell, in a footnote, attacked her argument. "It appears the dissent would uphold virtually any abortion regulation . . . ," he said. It "adopts reasoning that, for all practical purposes," would overturn the 1973 abortion decision.
That case, Roe v. Wade, "was considered with special care," Powell said, and "there are especially compelling reasons for adhering" to it.