In a strongly worded opinion, a federal judge yesterday struck down as unconstitutional provisions of Pennsylvania's restrictive abortion law and warned that "individuals can no longer feel secure" that abortion rights will be "provided by the judiciary."
Senior U.S. District Judge Daniel H. Huyett III, referring to the shift in recent Supreme Court abortion rulings, quoted Justice Harry A. Blackmun's admonition about the erosion of abortion rights: "The signs are evident and very ominous, and a chill wind blows."
The state said it will appeal. The case is expected to reach the Supreme Court, where it could provide a test for the 1973 Roe v. Wade decision recognizing a legal right to abortion.
Huyett struck down portions of the law that require a married woman to notify her husband before obtaining an abortion and wait 24 hours between visiting a clinic and getting an abortion. He also struck down provisions that require doctors to offer counseling and minors to obtain the consent of at least one parent, or a court order, before an abortion.
The opinion was issued a day after another federal judge ruled unconstitutional an even more restrictive law enacted by Guam that banned abortions except when the woman's life is threatened. Guam has not decided whether to appeal.
"Judge Huyett's decision is disappointing but not unexpected," said Robert Gentzel, a spokesman for state Attorney General Ernie Preate Jr., adding that Preate "intends to pursue all appropriate appeals, including appealing to the United States Supreme Court if necessary." Gentzel called the Pennsylvania law "a reasonable, responsible approach to dealing with a very difficult question."
Unlike the antiabortion measure in Guam and ones vetoed this year by the governors of Idaho and Louisiana, the Pennsylvania law was not designed as a direct challenge to Roe v. Wade. But Kathryn Kolbert, an American Civil Liberties Union attorney for the successful plaintiffs, said, "It's clear that if the Supreme Court found the Pennsylvania action to be constitutional, it would so undermine Roe v. Wade that it would be the same as overruling it."
The law was signed by Gov. Robert P. Casey (D) in November after it was overwhelmingly passed by state legislators, making Pennsylvania the first state to approve abortion restrictions after the July 1989 Supreme Court decision in Webster v. Reproductive Health Services gave states greater leeway to curb abortion.
Some of the sections were rewritten from a 1982 statute, much of which was struck down by the Supreme Court in 1986, a point noted by Huyett in his decision.
In a three-day trial in Reading earlier this month, lawyers for the state argued that the law would protect the interests of women and families.
Lawyers for abortion-rights advocates who brought the lawsuit argued that the abortion controls infringe on women's rights and could endanger their health.
The state argued that similar parental consent laws had been upheld in other states and that the husband should be told because the state had "a legitimate interest in protecting the spouse's interest." But Huyett ruled that requiring parental notification "unduly burdens a minor woman's right to elect to end her pregnancy."
Pennsylvania Pro-Life Federation spokeswoman Mary Beliveau said she was disappointed with the ruling but that she was confident the law would be upheld on appeal. Calling the decision "clearly erroneous," she said the Supreme Court recently upheld Minnesota and Ohio parental consent laws similar to the Pennsylvania measure.
In his 198-page ruling, Huyett said the state's lawyers "seem to argue that the constitutional standard applicable to judicial review of abortion regulations has somehow been modified by recent Supreme Court decisions. . . . I most respectfully disagree."
Huyett said that "whatever the Supreme Court may decide to do with this issue in the future, one thing is clearly present -- many of the challenged provisions of the act are unconstitutional under Roe vs. Wade and its progeny."