Decision Raises Question About ‘Undue Burden’

WASHINGTON —  The Supreme Court’s latest ruling on abortion rights makes clear that women retain a right to terminate their pregnancies but leaves almost everything else about abortion law up for question, lawyers on both sides of the issue said Monday.

Under the court’s ruling, states may regulate abortions, even act deliberately to discourage them, so long as their laws do not create an “undue burden” on women seeking abortions.

But the definition of “undue burden” has been unclear since Justice Sandra Day O’Connor first used the words in an abortion case nine years ago--and unclear it remains.

Some implications of the decision are clear. Unless the current 5-4 split on the court changes--a possibility given that one of the justices in the majority, Harry A. Blackmun, is 83--states still will not be able to ban most abortions. At least three such laws--in Utah, Louisiana and Guam--are under challenge in federal courts.

Beyond that, however, the court’s ruling settles relatively little--even in regard to the constitutionality of the Pennsylvania law that was challenged in the current case.

For example, the court upheld the portion of the law that requires women to wait 24 hours before having an abortion. But the justices also suggested that they might change their minds and strike down that provision if evidence shows that, in practice, the waiting period will create an undue burden for some women: “those with the fewest financial resources, those who must travel long distances and those who have difficulty explaining their whereabouts to husbands, employers or others.” Abortion-rights activists say they plan to challenge the law immediately on that ground.

The court’s ruling “guarantees full employment for lawyers,” said Kathryn Kolbert of the Center for Reproductive Law and Policy. She represented Planned Parenthood in its challenge to the Pennsylvania law.

The new standard is “squishy,” Kolbert said, and “it may well depend on each judge’s view” of how burdensome a given law proves to be.

Dissenting in Monday’s case, Chief Justice William H. Rehnquist used almost the same words. The new standard is based only on “a judge’s subjective determinations,” Rehnquist complained. Given that the majority of current federal judges were appointed by Presidents Ronald Reagan and Bush, that prospect daunts many abortion-rights activists.

Past cases suggest that the court still will not allow some types of restrictions. Among the restrictions struck down in the past that probably remain out of bounds are laws that require abortions to be performed in hospitals rather than clinics and laws that require women to get permission of committees of doctors before obtaining abortions. In addition, the court clearly indicated that states still cannot require minors seeking abortions to obtain consent of their parents unless the law gives minors the option of seeking permission from a judge instead.

The end result, dissenting Justice Antonin Scalia suggested, may well be that the new ruling will allow states to adopt abortion restrictions only so long as they do not actually have much impact in decreasing the roughly 1.5 million abortions performed annually.

If a given restriction actually “prevents a significant number of women from obtaining an abortion,” courts logically will conclude that the restriction raises a “substantial burden,” Scalia objected. Although the court says states can act to protect “potential human life,” Scalia said, the decision “permits the state to pursue that interest only so long as it is not too successful.”

Abortion-rights advocates, however, put a substantially different gloss on the court’s ruling. They fear that the decision will open the way for a steady stream of regulations designed to harass abortion clinics out of business and close off options for women who are poor, young or living in areas hostile to abortions.

Already, they point out, a woman’s right to an abortion depends heavily on where she lives and how much money she has. Although abortions are readily available for women who can afford to go to private doctors or travel to cities where the procedure is routinely performed, poor women or those living in areas hostile to abortion often have few options.

In the entire state of North Dakota, for example, only one clinic provides abortions, and that clinic only performs the procedure once a week when the doctor flies in from Minnesota, noted Lynn Paltrow of the Center for Reproductive Law and Policy. In a state like that, a 24-hour waiting period could effectively make abortions unavailable, she said.

States such as Pennsylvania, Missouri and Ohio, which have long had strong anti-abortion movements, likely now will try to dictate in great detail how doctors who perform abortions conduct their practices, said Planned Parenthood attorney Roger Evans. “Doctors, particularly in states where there is a strong anti-abortion force, are going to find the state has become their partner,” Evans said.

In the last two years, more than 800 bills to restrict abortions in one way or another have been introduced in 40 different state legislatures.

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