Abortion: Predicting the demise of Floe v. Wade, the landmark 1973 decision that legalized abortion on demand, is the easy part–but it is by no means clear what doctrine or concept will replace it. The trimester system that underlies Roe, which allows abortion during the first 24 weeks of pregnancy, is an attempt to balance a woman’s right to choose with the state’s overriding interest in protecting unborn life. In essence, the new court must decide if it wants to maintain that balance in some form, outlaw abortion more or less completely or somehow dodge the issue.
The court’s 1989 decision, Webster v. Missour), was an attempt to push abortion policy out of the courts and back to state legislatures–in effect, an attempt to shunt the issue back into the political thicket. It didn’t work, and it has prompted abortion-rights activists to mobilize their forces for what is likely to be a long and bitter war. The anti-abortion lobby, meanwhile, has been tireless in its efforts to pass new laws designed to force the courts to face the core issue: abortion on demand, for the purposes of contraception. The abortion foes seemed to hit pay dirt early this month, when the Louisiana Legislature passed a bill banning abortion for any reason except rape, incest or to protect the life of the mother. The Louisiana bill is likely to become law without Gov. Buddy Roemer’s signature. It may also become the historic test case that abortion foes hope for and women’s rights activists dread.
But there is still no good way to predict how the Supreme Court will rule. If its new majority wants to reformulate Roe while retaining at least some vestige of the right to abortion, Justice Sandra Day O’Connor has devised a standard that could be used. O’Connor, who has been the swing vote on several recent cases, has supported the state’s right to restrict abortion so long as the restrictions do not impose an “undue burden” on women. But others on the court–Justice Antonin Scalia in particular–are clearly ready to outlaw abortion altogether, and some fear that O’Connor will abandon her “undue burden” concept and join the new majority. Obviously, the man or woman nominated by George Bush will have a decisive voice in the outcome. But the probability of a rollback of Roe v. Wade by the court may prompt some state legislators to propose even more restrictions on abortion.
court’s most outspoken advocate for a broad range of affirmative-action remedies. His influence was especially obvious in the recent 5-4 decision upholding the Federal Communications Commission’s right to award broadcast licenses to minority-group owners. But the court’s conservative majority issued five separate rulings to limit affirmative-action programs in 1989, and it is virtually certain the court will be even less supportive of civil rights in the near future. That has led congressional Democrats to try to protect the legacy of the Warren and Burger courts, and Congress is expected to adopt new legislation to shore up the legal basis of affirmative action in coming weeks.
Thurgood Marshall, Brennan was the court’s most persistent opponent of capital punishment and it was his influence that led the court to review scores of death-row appeals since the death penalty was ruled constitutional in 1976. During its 1989-90 term, the court voted to restrict appeals by condemned prisoners, which makes it likely that the pace of executions will soon quicken in many state prison systems. (There are currently some 2,400 prisoners on death row nationwide, and about 20 executions each year.)
the Warren court are in danger of further erosion, though probably not outright reversal by the court. One is the Miranda rule, which requires police to advise a suspect of his constitutional rights before taking a statement or confession. The other is the so-called exclusionary rule, which prohibits the use of evidence collected during a warrantless search. Both are essentially intended to prevent overzealous conduct by police, and both have been under fire from conservatives for years. Court sources say Brennan’s influence has been instrumental in protecting both rules from most (if not all) of the conservatives’ attempts to curb them. Brennan, says University of Virginia Law School professor A. E. Dick Howard, is “a skilled tactician who knows the rules of the game [and] a wonderful, warm human being…. His colleagues never could just brush him aside.”
Amendment rights, Brennan wrote the majority opinion in both of the court’s recent rulings on flag-burning. But both rulings, one in 1989 and the other this year, were highly controversial with politicians and the public, and both were 5-4 decisions. As a result, it is easily possible that a Brennan-less court will uphold new legislative bans on flag-burning. But court watchers note that Scalia and Anthony Kennedy, two of the court’s most conservative members, agreed with Brennan that flagburning should be protected as a form of political speech. As a result, the outlook on flag-burning is unclear, and the next justice will decide the issue.
key voice and vote in slowing the court’s progression toward a more relaxed attitude on the separation of church and state. In a 1985 case from Grand Rapids, Mich., for example, he wrote the majority opinion holding that state employees may not teach in church-sponsored schools, and he also pushed for strict limits on government participation in Christmas-season religious displays. Legal scholars say it is virtually certain that the court will now be more accommodating toward religious practices in church-state controversies.
In the last two years, 68 of the Supreme Court’s 261 decisions have come by 5-4 votes, and on some of the most divisive issues facing the country:
Health Services (1989) and Hodgson v. Minnesota (1990): One decision allowed states to enact sharp restrictions on abortion rights; the other upheld local laws requiring a teen to tell both parents before obtaining an abortion, if she has the option of going to a judge for permission.
Johnson (1989) and United States v. Eichman (1990): The court held that burning the American flag is a form of political speech protected by the First Amendment. William Brennan authored the majority opinion in each case.
Lynaugh (1989) and others: Under these rulings, states may execute the mentally retarded, juveniles and those who committed crimes as minors.
Packing Co., Inc. v. Atonio ( 1989) and other’;: The court greatly narrowed the civil-rights laws covering job discrimination and made proving violations more difficult.
Missouri Dept. of Health (1990): The decision lets states require clear proof that incompetent patients want to die before life support is shut off.
