When his first abortion case came before the Supreme Court last year, new Justice David Souter seemed to express distaste for government regulations that forbid physicians in federally funded family planning clinics from telling women, even when they asked, even when their health or life was in danger, to mention abortion or to refer them elsewhere. Justice Souter said to the U.S. solicitor general, "You're telling us that the physician cannot perform his usual professional responsibility, that [the government] in effect may preclude professional speech."
The solicitor general denied this, but it could not be clearer that is what the regulations require. They read: "[If] a pregnant woman requests information on abortion. . . the project counselor tells her that the project does not consider abortion an appropriate method of family planning."
Surprisingly, lamentably, Justice Souter joined the four mosconservative members of the Supreme Court Thursday to uphold those regulations. It is entirely possible this vote and decision may telegraph a later vote and a later decision on the very constitutionality of the right to an abortion for all women. The majority was reached without Justice Sandra O'Connor. She had been all that stood between efforts to overturn the landmark 1973 decision upholding the right to abortion, Roe vs. Wade. Her vote is no longer enough.
Justice Harry Blackmun, the author of Roe, issued an impassioned dissent Thursday. He pointed out that these regulations deny the women involved their constitutional right to have an abortion under certain circumstances -- and also deny medical practitioners their constitutional right to free speech. The regulations clearly do that. These denials reinforce each other in a pernicious way. If a doctor can't tell a woman abortion is one option in her particular circumstances, she is likely to believe that abortion is not in her best interest, even when it may be.
The Reagan-era regulations were written in 1988, 18 years after the law providing for family planning clinics for the poor was passed. They were written not on the basis of medical or legal considerations, but pure politics. Chief Justice William Rehnquist his opinion for the court Thursday admitted congressional intent in 1970 did not mandate such regulations, and may even have been opposed to such regulations.
In effect, as Justice Blackmun lamented in dissent, Roe vs. Wade may now be a dead letter for millions of women. The right to an abortion may still be "technically intact," he said, "but unenforceable" for poor women who depend on family planning clinics, and thus "it ceases to be a right at all."