Abortion 1989: Judicial Backpedaling on the

Right to Privacy?

Since 1973 when Justice Rehnquist dissented with the decision of the United States Supreme Court that established a woman's right to terminate her pregnancy, more than 1.5 million women have come forward each year to exercise that right. But that may be coming to an end, at least in part.

Much has changed since 1973. William Rehnquist is now the Chief Justice qf the United States Supreme Court and there are many who are vehemently contesting the validity of this so-called right to abortion.

The right to have an abortion had a curious judicial conception in its own right, as reflected in Chief Justice Rehnquist's dissent. There is no mention in the Constitution of any right of privacy per se.

Many believe that, without saying so directly, the court has recognized over the years what can be construed as a right of privacy through the First Amendment's protection of the liberty interests of religion and speech, the Fifth Amendment right against self­incrimination and the Fourth Amendment's guaranteed freedom from unreasonable searches and seizures.

But the Roe court relied on the Fourteenth Amendment which restricts various state actions which impact upon an individual's liberties. This is important because in the constitutional scheme of things, the Fourteenth Amendment is not unlike a governor on the various state legislative engines of change.

It prohibits the states from impinging on the various liberties found in the Bill of Rights unless they have a compelling need to do so. Therefore, any rights arising under the Fourteenth Amendment have traditionally required a balancing of the interests of the state's right to regulation and the individual's right to liberty, and indirectly, privacy.

As a result, the Supreme Court has long held that only personal rights truly "fundamental" or "implicit in the concept of ordered liberty" are included in the Fourteenth Amendment's roughly defined guarantee of personal privacy and liberty. Even the Roe court acknowledged that this right of privacy is not absolute and is subject to limitations, not the least of which is a state's interest in safeguarding health, maintaining medical standards, and protecting potential life.

The key is that if the right is not a fundamental right, then the individual states are generally free to develop their own regulations, if those regulations bear a rational relation to a legitimate state interest.

Although the Supreme Court in 1973 held that a woman's right to privacy with regard to her body was fundamental, it is questionable whether the current make-up of the court holds these same opinions. It is generally believed that Chief Justice William Rehnquist and Justices Byron White, Sandra Day O'Connor and Antonin Scalia hold the Roe decision in disfavor. The key vote could come from the newest Justice on the court, Anthony Kennedy.

Nonetheless, the fact that five out of nine Justices may disagree with the Roe decision does not necessarily mean that they will be inclined to overturn the decision. In the law there is a judicial policy known as stare decision under which a point of law will generally be followed in an effort to foster predictability and certainty.

Conservative justices tend to respect the policy moreso than their liberal counterparts, but the exceptions to the policy are numerous and the current court's track record in this area cannot guarantee that the Roe decision will stand on the principle.

Even if the high court decides against reversing Roe v. Wade, in whole or in part, medical science itself could very well continue the gradual erosion of a woman's right to an abortion.

The reason is that the Roe decision is anchored in the concept of fetal "viability." Since 1973, viability has been defined as the time the fetus is "potentially able to live outside the mother's womb albeit with artificial aid."

The Roe court said that up until that moment of viability, the privacy rights of the Fourteenth Amendment guaranteed that it was the mother's right to terminate the pregnancy with certain restrictions designed to protect the health of the mother.

But the concept of "viability" caused the court to balance the rights of the mother against those of the fetus on the premise that the state has an interest and a right to protect the life of the fetus if it so wishes.

The Roe decision established criteria to govern each of the three timesters of pregnancy. During the first trimester the abortion decision rests solely with the mother and her physician on the theory that the state has no compelling interest during this period.

During the second trimester, the state has a compelling interest in the woman's pregnancy on the theory that the risk of mortality from abortion is greater than the risk of mortality during child birth.

During the third trimester, states are allowed to prohibit abortions except in cases where it is necessary to protect the health or life of the mother. In the third trimester, the state's compelling interest switches to the fetus, which at that point has the capacity for life outside of the womb.

The Supreme Court in Roe generally felt that viability began somewhere around 28 weeks, which roughly coincides with the end of the second trimester. But that was 1973. Since that time, the advent of the neonatal intensive care unit and other medical advances are redefining the concept of "viability," sq that now it is not uncommon for babies less than 24 weeks old to survive.

As the ongoing advancements in the field of medical science continue to increase the chance of survival for pre­mature infants and the moment of viability is pushed back, the state's right to protect the life of the fetus will continue to expand.

But that may be moot after June. At the request of Attorney General Richard Thornburgh, the United States Supreme Court has agreed to hear arguments in a Missouri case, Webster v. Reproductive Health Science, which could be the case that overturns the 15-year ­old Roe decision. If that happens, the general concensus is that the individual states will once again be free to establish their own abortion legislation.