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High Court Won’t Budge On Abortion Justices Refuse To Revive Law Requiring Parental Notification


Refusing to reopen the bitter abortion debate, the U.S. Supreme Court on Monday rejected a state’s bid to make it harder for a teen-age girl to get an abortion without a parent’s permission.

Over the objection of three conservative dissenters, the court refused even to hear South Dakota’s appeal of a federal court order that struck down its 1993 law requiring pregnant girls in almost all instances to notify a parent before they obtained an abortion.

Looked at narrowly, the court’s action appears to straighten out one wrinkle in abortion law. States must give pregnant girls the option of bypassing their parents and seeking a judge’s permission to get an abortion.

More broadly, however, Monday’s announcement strongly suggests a solid majority of the Supreme Court is unwilling to allow further restrictions on abortion and wants to withdraw from the abortion controversy.

“I think they have decided they don’t want to revisit the abortion issue. Period. No matter what happens,” said James Bopp Jr., general counsel for the National Right to Life Committee.

The anti-abortion group had joined South Dakota’s appeal in the case and argued that parents cannot be left out when a minor girl is about to make a fateful decision about her pregnancy.

Under the court’s rule, it takes the votes of four justices to hear an appeal. However, the anti-abortion group within the court could muster only three.

Justice Antonin Scalia, writing for the dissenters, blasted his colleagues for striking down the state’s law without granting it a hearing.

“Today’s denial (of the appeal) serves only one rational purpose: it makes our abortion ad hoc nullification machine as stealthful as possible,” he wrote. Chief Justice William H. Rehnquist and Justice Clarence Thomas joined his dissent.

Four years ago, the court in a surprise move affirmed the Roe vs. Wade ruling that gave pregnant women a right to choose abortion. On a 5-4 vote, the court said states cannot put an “undue burden” on a woman who seeks an abortion.

Until then, the court had been gradually allowing more restrictions on abortion and had signaled that a majority might well vote to overturn the abortion right.

But in June 1992, justices Anthony M. Kennedy and Sandra Day O’Connor changed directions and said they were committed to upholding the basic principle that women may lawfully choose abortion.

Angry and frustrated, Scalia lambasted Kennedy and O’Connor in court opinions and private comments. The two justices, like him, were appointed by former President Reagan, a staunch foe of abortion. Scalia suggested the two had betrayed their allies and their legal principles by suddenly joining the abortion-rights side.

While Kennedy and O’Connor did not respond publicly, the two have steadfastly refused to reconsider their 1992 decision.

“They seemed to say, ‘This is where we are drawing the line. That’s it, and now we are withdrawing from the controversy’,” said Roger Evans, counsel for the Planned Parenthood Federation in New York.

Since 1992, the justices have not agreed to rule on a single abortion case. The only exceptions have been free-speech cases that involve abortion protests.

But lower courts have continued to struggle over how to apply the “undue burden” principle.

At least 36 states have laws on the books that require pregnant minors to notify a parent or a judge before they get an abortion.

Monday’s Supreme Court action does not affect those laws. South Dakota tried to go one step further by eliminating the girl’s option of going to a judge.

That law is unconstitutional as written because it puts a “substantial obstacle” in the path of many young girls seeking an abortion, said Chief Judge Richard S. Arnold of the 8th U.S. Circuit Court of Appeals.

“The state can impose regulations designed to ensure that the a woman makes a thoughtful and informed choice, but only if such regulations do not unduly burden her right to choose whether to abort,” wrote Arnold, a close friend of President Clinton’s who was considered for a Supreme Court appointment two years ago.

In November, South Dakota’s governor appealed that ruling.

Unwilling to reconsider the matter, the Supreme Court dismissed the appeal Monday.


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