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Court limits women's right to abortion Justices uphold Roe vs. Wade but allow restrictions 5-4 ruling allows states to balance rights of fetus

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court, stoutly refusing to "overrule under fire" its 1973 abortion decision, ruled 5-4 yesterday that women in America still have a constitutional right to end pregnancy -- but it made the right narrower.

Under the ruling, in a stern rebuff to the Bush administration and the Reagan administration before it, the court said Roe vs. Wade is to stay on the books. There would be "a terrible price" for the court and the country to overrule it now, the majority said.

But it gave that ruling a new and more limited meaning, with the right to abortion no longer treated as "fundamental." Using the new approach, the court upheld four out of the five key parts of two restrictive abortion laws in Pennsylvania.

For the first time, the ruling will allow state legislatures to balance the rights of women against the rights of the fetus throughout pregnancy. The balance will be more on the woman's side earlier in pregnancy and on the fetus' side later.

The right apparently now means this: A woman must either opt to get an abortion before about the 23rd week of her pregnancy or else come close to forfeiting that right -- except in a definite medical emergency. Under Roe vs. Wade, the right was weaker, but still existed, after 28 weeks of pregnancy.

Now, when the pregnancy reaches the point at which a fetus could live outside a woman's body -- a point that medical science puts no earlier than 23 or 24 weeks -- states may "override the rights of the woman" in favor of saving "the developing child."

The court expressly threw out the step-by-step "trimester" rules adopted in the Roe ruling 19 1/2 years ago, saying that approach took away too much of state power to "show its concern for the life of the unborn" in the early and middle stages of pregnancy.

In addition, the court overturned two of its prior rulings -- in 1983 and 1986 -- that had told state and local governments they could not force doctors to give women lectures before an abortion to try to discourage abortion by creating sympathy for the fetus.

As spectators listened in solemn silence, four justices recited in a businesslike, unemotional way from parts of the complex decision. In one of the more unusual aspects, the main opinion's three joint authors -- Justices Anthony M. Kennedy, Sandra Day O'Connor and David H. Souter -- took turns reading from it.

Chief Justice William H. Rehnquist, who announced the dissents, said the majority "retains the outer shell of Roe vs. Wade, but beats a wholesale retreat from the substance of that case."

He and the other three dissenters argued that the court should simply have overruled Roe outright, because it was "wrongly decided" -- the first time that that view has gained more than one sure vote on the court.

Those four dissenting votes made it clear that the constitutional right to abortion now depends on the shift of even a single vote, now or in the future -- a fact that is likely to made future court nominations a bigger issue in this year's presidential election campaign.

President Bush's appointees to the court -- Justices Souter and Clarence Thomas -- split their votes yesterday, with Mr. Souter in the majority on all points and Justice Thomas joining dissents that argued against keeping Roe on the books in any form. Neither of them had cast a vote directly on abortion rights before; the abortion controversy had been a key question in Senate fights over each of their nominations.

Justice Harry A. Blackmun, the author of the original Roe ruling, who had several times predicted that it would be overruled, expressed notable pleasure at the outcome yesterday. But he added, "I fear for the darkness as four justices anxiously await the single vote necessary" to overturn Roe.

At the close of his opinion, the Roe author commented: "I am 83 years old. I cannot remain on this court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today."

Unsurprisingly, the two sides in the unrelenting national fight over abortion disputed its meaning. Abortion rights forces saw it as a nearly total defeat for their side; anti-abortion forces either denounced the decision to keep any part of Roe vs. Wade or expressed partial satisfaction.

"Roe vs. Wade as we have known it is no longer the law of the land," said Marcia Greenberger, co-president of the National Women's Law Center. "As a woman in this country, I have less right than I had." Kate Michelman, president of the National Abortion Rights Action League, added, "Don't be fooled by the court's smoke screen. What the court did is devastating for women."

On the other side, the National Right to Life Committee said the decision was "a loss for unborn children and a victory for pro-abortion forces. We are disappointed." Cardinal John O'Connor of New York, chairman of the Roman Catholic Bishops' Committee for Pro-Life Activities, found "encouraging" the parts of the decision upholding facets of the Pennsylvania laws but called the remainder "deeply disappointing."

President Bush, whose legal aides had twice asked the court to overrule Roe vs. Wade, said he was pleased with the decision upholding parts of the state laws. He argued that the clause requiring a parent's consent for a teen-ager's abortion "supports family values in what is perhaps the most difficult question a family can confront."

Official Washington's attention on abortion will now shift first to Congress and then to the presidential campaign, to gauge the political reaction to the ruling.

Senate Majority Leader George J. Mitchell, a Maine Democrat, said he would work to pass "as soon as possible" a proposed new federal law to protect abortion rights. And activists on both sides of the controversy vowed to start pressing political candidates to side with them in the dispute.

The controversy also is sure to return to state legislatures, where anti-abortion lobbyists are expected to press on with new restrictions that they hope will fit into the space the court opened to them yesterday.

The last time the court sent a message that states could adopt new limits on abortion -- in 1989 -- foes of abortion swiftly put more than 600 bills before state legislatures. Some of those became law.

WHAT THE COURT UPHELD:

Roe vs. Wade's "central holding" -- that women have a constitutional right to abortion -- is reaffirmed 5-4. But the right to abortion is now more limited, with states free to act, throughout pregnancy, to protect fetal life.

By 7-2 votes, the court approved Pennsylvania requirements that:

* Women wait at least a day to have an abortion, and listen to a lecture designed to encourage them to carry the fetus to birth.

* Pregnant teenagers under 18 must get approval for abortion from one parent or state judge.

...AND STRUCK DOWN:

By 5-4 vote, the court nullified a Pennsylvania requirement that married women must notify their husbands of a decision to have an abortion.

HOW THE JUSTICES VOTED:

On the 5-4 votes, Justices Anthony M. Kennedy, Sandra Day && O'Connor, David H. Souter, Harry A. Blackmun and John Paul Stevens were in the majority. Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas, and Byron R. White were in the minority.

On the 7-2 votes, Justices Blackmun and Stevens were in the minority.

Five justices on the survival of Roe v. Wade

Majority opinions

Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter, writing the main opinion: The woman's right to terminate her pregnancy before viability is the most central principle of Roe vs. Wade. It is a rule of law and a component of liberty we cannot renounce.

John Paul Stevens, concurring in part with the majority: "... The societal costs of overturning Roe at this date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basis equality of men and women."

Harry Blackmun, author of Roe v. Wade, concurring in part with the majority: "I am 83 years old. I cannot remain on this court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made."

Dissenting Opinions

Antonin Scalia, dissenting: "The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them do so. The permissibility of abortion, and the limitations upon it, are to be resolved like the most important questions in our democracy: by citizens trying to persuade one another and then voting."

Chief Justice William Rehnquist, Dissenting: "Roe was wrongly decided, and it can and should be overruled."

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