'Undue' Waffling

What's going on in Guam is not high in the minds of most Americans. After all, the U.S. territory is home to fewer people than live in Cambridge. Its location in the north Pacific is not a common destination even for those searching for ways to bump up their frequent flyer miles.

And, unlike the District of Columbia and Puerto Rico--engulfed by the political storms of statehood movements--Guam is mostly plagued by storms of the natural kind: typhoons and hurricanes such as those that touched down on the island in the past few months.

But, in fact, a Guam law and resulting court case could have broad implications for the lives of Americans in every corner of this country. This past April, the Ninth Circuit Appellate Court overturned Guam's 1990 abortion law. This legislation had outlawed abortions in the territory, with the exception of cases where pregnancy placed the woman's life in danger.

Two weeks ago, the Supreme Court declined to review the April decision to outlaw the abortion ban. This signals what could become a dangerous trend.

In its refusal to reconsider the repeal of the Guam law, the majority opinion cited the argument of "undue burden" to attack the legality of preventing women from having abortions. The justices lifted this argument from last summer's Casey v. Planned Parenthood ruling that fundamentally upheld 1973's landmark Roe v. Wade decision.

However, the use of the "undue burden" principle in the most recent case is troubling. Such a vague argument, that women should not face "undue burdens" in their desire to obtain abortions, could be used to justify any cases of abortion. The court has yet to explain in full their interpretation of "undue burden."

But the Supreme Court's decision not to rule on the lower court's overturning of the Guam abortion law has significance of its own.

Certainly it is a victory for pro-choicers. It tells the nation that the court's June resolution which upheld Roe v. Wade and forbade state imposition of "undue burdens" on a woman's right to abortion is not open to dispute--at least for now.

But by refusing to hear the case, the Court signals its unwillingness to challenge its previous abortion decisions. In an issue that is as important as this one, the Court should agree to at least hear the appeal.

According to The New York Times, the court's rebuff of the latest challenge to its June ruling marks the only time in the past 20 years that a major abortion case has been thrown out the window. Will the court's decision to discard cases on abortion be a continuing trend? What do these actions signify for the abortion debate? Both pro-lifers and pro-choicers should be wary of a court that deems significant abortion cases irrelevant.

With a contemporary moral issue like abortion, there can be no cases that are not significant because the abortion question has not been resolved to anyone's satisfaction. Therefore, cases should not be overlooked because the court feels the matter has been settled.

The finality of Supreme Court decisions is a cherished and respected force of justice in our liberal democracy. But if pertinent cases are not allowed to appear before the court, where excellent minds can be the final arbitors of heated imbroglios, where does the destiny of future cases lie?

In the near future, the court will certainly find itself facing other cases which challenge states' rights to limit abortion accessibility. Will the court decide not to review future cases on the grounds that any obstacle would be an "undue burden?"

In fact, the court may soon tangle with the legality of abortion clinic blockades. Though allowing protesters to use force to prevent access to these facilities is unthinkable, a decision to outlaw their right to assemble would be equally unconstitutional.

What people should fear now is not the outcome of such a trial, but instead, whether or not the court will hear this case at all. If the court were to deem blockades "undue burdens," then what's to stop the justices from citing this summer's Casey decision to toss the case aside?

In addition, the Supreme Court may soon be faced with a Mississippi abortion case where a 24-hour waiting period and counseling would in fact be considered impositions for its residents. While such components of legislation upheld in Pennsylvania, Mississippi could be different. After all, the Southern state boasts only three abortion clinics.

Such stipulations only exacerbate difficulties with abortion access that now exist in Mississippi. How the court will redefine undue burdens in distinct instances like this will give some insight into its future decisions.

In June, Justices Sandra Day O'Connor, Anthony Kennedy and David Souter found that waiting periods and counseling--aspects of the Mississippi law that could be considered "undue burdens"--were not "undue burdens" for expectant mothers in Pennsylvania. In that case, "undue burden" was used to argue in favor of abortion limits. Now it is used to defend greater access to abortions in Guam. Such arbitrary use of this principle will not produce a coherent definition of legalized abortion in this country.

Two weeks ago, Justice Antonin Scalia flatly stated that "the Guam law was struck down on its face." Now Americans must hope that the Supreme Court will face fresh debate on the persisting abortion fury, instead of looking the other way. The high court must show leadership on this crucial issue.