The Justice in the Middle

For good reason, Sandra Day O’Connor is known as the abortion swing vote on the U.S. Supreme Court. In two of the cases last week involving parental notification, O’Connor swayed between the court’s evenly balanced liberal and conservative wings. She joined court liberals in a 5-to-4 majority that overturned the Minnesota law requiring adolescents to inform both parents ! before obtaining an abortion. Then she moved rightward to give conservatives a 5-to-4 majority that approved the Minnesota law that offers minors the option of getting permission for abortion from a judge.

Peregrinations such as these have made O’Connor a moving target for antiabortion forces, who are determined to see her provide the decisive fifth vote to overturn or at least neutralize Roe v. Wade. Their goal is to send before the court a succession of laws that will chip away at her ill-defined middle ground, until it is too narrow to stand on.

Though she has been unwilling to overturn Roe altogether, O’Connor has voted in favor of several state laws that would restrict abortion. She wrote in a 1983 decision that she could accept such limitations so long as they were not “unduly burdensome” to a pregnant woman. That left open a big question: Just what burdens would the Justice consider too heavy? “This legal fight over abortion is like a game of stud poker,” says Roger Evans, an attorney for the Planned Parenthood Federation of America. “Each decision forces Justice O’Connor to turn over one more card revealing what she’s got in her hand.”

The game has been played for higher stakes since the Webster case last year, in which the court gave states wider latitude to restrict abortion. O’Connor’s position was more decisive — and uncomfortable — than ever. She voted in favor of the Missouri statute under review (which forbids the use of state funds for abortions). But she balked at the opportunity to let history record that the Supreme Court’s first woman was also the one who provided the crucial vote to end abortion rights. “There will be time enough to re-examine Roe,” she wrote, “and to do so carefully.”

It may be that no amount of pressure will persuade O’Connor to overturn Roe altogether. As a result, pro-life groups are urging state legislatures to pass laws that will meet her “undue burden” test, placing crippling restrictions upon abortion without making it illegal. After examining O’Connor’s opinions, the National Right to Life Committee last year drafted eight model laws for consideration by states, each designed for maximum appeal to her. “We are trying hard to avoid sending O’Connor tough cases,” says Burke Balch, an attorney for the group. “We want the most moderate legislation possible that will still be effective in preventing abortion.”

One such bill attempted to meet her concerns by shifting the burden from the + woman to her physician. The bill would make it a crime to perform an abortion but not necessarily to obtain one. A statute based on that notion was adopted in March in Idaho but was vetoed by Governor Cecil Andrus. So far, the model- legislation tactic has met with limited success elsewhere too, largely because a pro-choice voter backlash has given state lawmakers second thoughts. Though 350 abortion-related bills were introduced around the country after Webster — not all of them based upon the Right to Life group’s suggestions — only four were adopted, and one of those, Idaho’s, was vetoed.

Both sides of the abortion divide could draw hope from O’Connor’s rulings last week on parental notification. Her vote to strike down one version of the Minnesota statute represented the first time on the court that she has raised an objection to any law restricting abortion. But the terms she used to examine the law seemed to undermine the very notion of abortion as a constitutional right.

O’Connor stressed that the judicial bypass was needed to meet the state’s declared goal of ensuring closer family ties. Otherwise teenagers from broken homes would have to track down and inform absentee parents, with results that might not do much for family harmony. Such an approach made it appear that O’Connor was asking the state merely to prove its statute was “reasonable,” a less stringent legal standard than the “compelling state interest” that courts ordinarily require government to prove before they okay laws that restrict fundamental rights.

Pro-choice groups took solace in the fact that the Minnesota law involved juveniles, whose rights under law have always been more limited than those of adults. “We still won’t know what O’Connor believes about undue burdens until we get a case that involves states directly regulating the abortions of adult women,” says Dawn Johnson, chief attorney for the National Abortion Rights Action League. For a while, at least, the court’s swing vote may still be up in the air.