SINCE THE Supreme Court decided Roe vs. Wade 10 years ago, courts and legislatures have approached the regulation of abortion by using a trimester rule. During the first three months of pregnancy, there can be no restriction on the medical decision made by a doctor and a patient; during the second three months, the state may regulate the procedure to the extent necessary for the protection of maternal health; in the final three months, states are free to regulate or prohibit abortion. This week the Supreme Court considered a series of state and local laws that purport to regulate abortion within the Roe vs. Wade guidelines.
The test the court used in assessing these laws was whether they bore some rational relationship to a legitimate state purpose or were enacted in order to impose a significant obstacle to the exercise of a constitutionally guaranteed right. The results were mixed. Laws requiring pathology reports, for example, or the presence of a second physician during abortions performed at a time when a live fetus might be delivered, were upheld. So was a statute requiring minors to obtain parental or court consent before securing an abortion. But some laws were found to be so restrictive that they made it difficult to exercise a right. Thus, states cannot require a waiting period of 24 hours before an abortion; they cannot require that a woman be told that abortion is a dangerous procedure or that the unborn child is a human life from the moment of conception; and they cannot limit second-trimester abortions to hospitals.
While this week's decisions do not create new rights or approve abortion on demand, they can, on balance, be considered a significant victory for pro- abortion forces. Anti-abortion groups have taken a two-track approach to the court's ruling in Roe vs. Wade. Efforts have been made to overturn the decision by statute or constitutional amendment, and, at the same time, legislatures have been pressured to enact laws making it more difficult--emotionally, financially and practically--to obtain abortions. The court has now viewed all such regulation with a strong bias in favor of those seeking abortions, virtually foreclosing this strategy to the pro-life groups. A direct attack on Roe vs. Wade is now the only practical approach for those who oppose abortion, and that is the route least likely to be successful. The court has reaffirmed and strengthened its earlier position--which we think is a good and useful thing.