Stepping Backward

The U.S. Supreme Court has upheld the right of women to choose abortions, but it also has invited opponents to keep fighting to persuade the court to strike down the right. The Monday decision was a setback to freedom from government intrusion in intensely private decisions.

By a 5-4 decision, the court ruled that the state of Missouri could restrict access to abortions, but fell one vote short of overturning the landmark 1973 Roe vs. Wade decision that gave constitutional protection to the right of choice.

The one vote was that of Justice Sandra Day O’Connor, based on a legal objection to overturning Roe, one that she suggested could be swept away under the right circumstances.

The validity of the Missouri law did not turn on the validity of Roe, she said. Time enough to re-examine Roe, she wrote, when a case came along that did, “and to do so carefully.”

Justice Antonin Scalia accused the court of “finessing” Roe vs. Wade instead of rejecting it outright. In a dissent that revealed deep feelings and deep divisions, Justice Harry A. Blackmun, who wrote the 1973 opinion, said that while abortion law had survived, “the signs are very evident and very ominous, and a chill wind blows.”

Monday’s case, Webster vs. Reproductive Health Services, restored a Missouri law prohibiting the use of public funds, hospitals or medical personnel to perform abortions. The ruling will have no immediate effect in California, whose Constitution contains an explicit guarantee of privacy, but may cause other states to set up legal impediments to abortions.

Chief Justice William H. Rehnquist acknowledged the basic political nature of the controversy and the fact that the court was opening the way for the battle to move to the states. Justices in the minority seemed to suggest, he wrote, that in a nation where women are in the majority, state legislators “will treat our decision today as an invitation to enact abortion legislation reminiscent of the Dark Ages . . . “ He said that gives too little credit to the legislators or the court majority. Yet that is precisely the end to which zealous opponents of abortion will now turn their energies. Perhaps the most important thing that was decided Monday is that the fight will go on.