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Supreme Court On A Collision Course with Roe vs. Wade

By Jay Rogers
Published November 1, 1989

WASHINGTON, D.C. (FR) – The U.S. Supreme Court, having begun a new session on October 2, will hear three abortion cases which may result in an overturn of the 1973 Roe v. Wade decision.

According to New York Times columnist Linda Greenhouse, these cases “offer a more direct road map for overturning Roe vs. Wade than the route offered by [Webster].”

Douglas Johnson, legislative director for National Right to Life Committee, said, “In any one of these cases, if the court is going to proceed in a principled way they should first determine what the standard of review is going to be, which means they should decide initially in each case whether or not there is a fundamental constitutional right to abortion.”

On the same day that the Supreme Court decided Webster vs. Reproductive Health Services, it accepted three more abortion cases. Two of these cases, Ohio vs. Akron Center for Reproductive Health and Minnesota vs. Hodgson, involve parental notification as a requirement before an abortion is performed on a minor. In a third case, Turnock vs. Ragsdale, the Court will examine an Illinois law that requires that abortions be performed in a well-equipped, licensed facility.

A Court spokesperson announced that Supreme Court Justice John Paul Stevens will not take part in the Illinois abortion case. Stevens did not give a reason for his decision to withdraw himself from the case, but it is speculated the Justice may have a conflict of interest relating to the case, perhaps due to a previous relationship with a party in the dispute. Stevens has been a consistent supporter of liberal abortion rights; his absence in the case makes a pro-life victory likely.

In the Webster case, the majority ruled to uphold the Missouri law, but were divided on the grounds for their ruling. Rhenquist, White and Kennedy suggested that Roe be “narrowed and modified”; Scalia urged that Roe be overturned in the Webster case; and O’Connor viewed the Missouri statute as compatible with Roe and did not offer an opinion.

James Bopp, Jr, National Right to Life General Counsel, has outlined three reasons why the cases the Court will hear this term more directly implicate Roe than did the Missouri statute. First, the statutes apply throughout pregnancy, not just after “viability.” Second, the statutes impose a “significant burden” on women obtaining abortions in the first trimester, thus contravening Roe’s holding that left first trimester abortions unregulated. Third, in Turnock, the woman is prohibited from being counseled by her physician, a direct and absolute bar to one of Roe’s key elements.

As a result of implications that these statutes make against Roe vs. Wade, the Supreme Court may reconsider a precedent. The issue of a woman’s “fundamental right to an abortion,” which is a key element sustaining Roe, may be reexamined by the Court.

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