At Odds With Free Will

IN January the Supreme Court agreed to hear a case which the White House hopes will overturn the Court's landmark decision in Roe v. Wade, which legalized abortion 15 years ago.

Webster v. Reproductive Health Services is not the first case on abortion that has come before the Court in the past 15 years. Until now, the Court has reaffirmed its 1973 decision that abortion is an issue to be decided between a woman and her doctor, and that state regulation of abortion beyond a limited point is a violation of the constitutional right to privacy.

When the Webster case was presented to the Supreme Court, the Justices could have chosen not to schedule the case for argument, but to rule on it with a summary decision that would not affect Roe. They chose instead to hear the case.

Immediately after it was announced that the Webster case would be heard--and probably ruled on--this spring, the White House sent a brief to the Court urging it to use this case to overturn Roe, This caused an immediate outcry from pro-choice groups around the country.

Although these groups are concerned that the Court's decision to hear Webster means that it will completely overturn its decision in Roe, it seems more likely that the Court will modify its decision, allowing states more control over regulations on abortion clinics.

THE state of Missouri has asked the Court to consider an appeal in the Webster case on several different rulings. The first is a District Court's decision that the preamble to the Missouri abortion law--which declares that "the life of each human being begins at conception"--is an impermissible definition on the part of the state about when life begins.

The implications of a statement like that are far-reaching. If the Court were to rule that life begins at conception, not only would abortion be legally considered murder, but oral contraception and the IUD, which prevent initial implantation of the embryo in the lining of the uterus, would also become illegal. Fortunately, it is unlikely that the Court will rule to overturn the District Court's decision on this point.

But there are two changes which probably will come out of the Webster case. The first will allow states to forbid publicly funded clinics to offer abortion as an alternative in counseling. The second will permit laws forbidding public facilities to perform abortions, even if the woman is paying for it herself. In several states, including Missouri, most abortions are currently performed at public hospitals.

Although abortions would remain legal, therefore, they would be increasingly difficult to obtain, particularly for poorer women, who cannot afford the costs of a private hospital or clinic, and do not receive proper information about abortion as an alternative to bearing a child.

OF course, a modification of the current abortion laws would be far less drastic than complete reversal of the Roe decision, but even minor changes in the law could mean serious setbacks in the quality of health care for women--particularly women from low-income backgrounds.

Before abortions were formally legalized, they were performed on millions of women, but the risk of maternal mortality, which has become nearly nonexistant since 1973, was quite high. If Roe is modified to make abortions difficult to obtain, women who cannot receive abortions through safe legal channels will begin looking for back-alley operations, as they did before Roe.

But a decision to overturn Roe would be much more than a return to the time of illegal abortion. The 1973 decision was not a ruling on the morality of abortion. Instead, it was a decision that a woman and her doctor should be allowed to handle the matter privately, without interference from the state.

Indeed, in a 1983 case, the Court itself pointed out that the Roe decision affirmed "the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." If this choice is not left to the individual, it becomes a matter of public choice.

What anti-abortion activists often seem to forget is that a woman's right to have an abortion is intimately tied to a woman's right not to have an abortion. To overturn Roe would be to decide that the state could make the most private of a woman's choices for her. If the Court rules that the state may deny a woman an abortion, it is, by extension, implying that the state could force an abortion.

This position is distinctly at odds not only with the Constitution, but with the sentiments expressed by President George Bush himself, when he said in his inaugural address that he hoped for a new spirit of "free will, unhampered by the state."