On Law: Three decades of Roe

WASHINGTON, Jan. 17 (UPI) -- On Jan. 22, 1973, the Supreme Court had something profound to say about abortion in the case of a Texas woman who had been denied one.

The "right of privacy, whether it be founded in the 14th Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as (a federal judge) determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The harm in denying a woman's right to an abortion, the court majority said, was obvious.

"The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent," the majority said. "Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation."

But the right to an abortion is not "absolute," the majority said, leaving the window open for some governmental regulation, especially in the third trimester.

The vote in Roe vs. Wade was 7-2, a fairly solid majority. Only one member of the Roe court remains on the Supreme Court. William Rehnquist" class="tpstyle">Chief Justice William Rehnquist was a relatively new associate justice then, and was one of the two Roe dissenters.

"I have difficulty in concluding, as the court (majority) does, that the right of 'privacy' is involved in this case," Rehnquist wrote in his dissent. "Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not 'private' in the ordinary usage of that word. Nor is the 'privacy' that the court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the court has referred to as embodying a right to privacy."

Now, three decades later, the issue of abortion is settled legally -- no federal judge may deviate from Roe and its successors without new guidance from the Supreme Court -- but far from settled politically. On Wednesday, tens of thousands of people will march up Capitol Hill to the steps of the Supreme Court, as they have for past 30 years, to protest the decision in Roe vs. Wade.

As they march, they will bring with them a new hope. There is a Republican president in the White House openly sympathetic to their cause, and Republican majorities in the House and Senate. Marchers can be forgiven for believing this time, finally this time, Washington will give them what they want: an end to a procedure that many of them regard as child murder.

Whether Republicans in power actually do something that substantive is up to President Bush and his consigliore, Karl Rove. The new Republican Majority Leader of the Senate, Bill Frist of Tennessee, is far more amenable to the president's wishes than his predecessor, Trent Lott of Tennessee.

Lott had promised to revive legislation for a national ban on "partial-birth" abortion -- a procedure in which the fetus is partially drawn from the womb before being dismembered -- whether the White House wanted him to or not. President Clinton twice vetoed such bans in the 1990s, saying the legislation made no provision for the health of the mother.

The Supreme Court struck down a Nebraska ban on "partial-birth" abortion in 2000's Stenberg vs. Carhart. The decision affected similar bans in 29 other states.

But the Nebraska case exposed the thinness of the high court majority supporting abortion rights.

Up until then, that majority was thought to consist of the four liberals, Justices John Paul Stevens, David Souter, Ruther Bader Ginsburg and Stephen Breyer, and the two swing votes, moderate Justice Anthony Kennedy and moderate conservative Sandra Day O'Connor.

But Kennedy voted with the minority in Stenberg vs. Carhart, leaving a narrow 5-4 majority. That despite the fact that some of the state bans were so vaguely worded that they might have had the effect of outlawing all abortions.

Which means of course that the narrow Supreme Court majority supporting abortion rights may last only as long as O'Connor remains on the court. The rumors are circulating, as they have for years, that she is ready to step down.

Whether that will be the case only O'Connor knows -- with the possible exceptions of her husband, the president and Rove.

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(Michael Kirkland is United Press International's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)