Copyright 2000 The New York Times Company
The New
York Times
View Related Topics
April 26, 2000, Wednesday, Late Edition -
Final
SECTION: Section A; Page 20; Column
1; Editorial Desk
LENGTH: 517 words
HEADLINE: Considering Abortion and Gay Scouts
BODY:
There were encouraging signs yesterday that a
majority of Supreme Court justices are prepared to defend women's health and
reproductive freedom against the proliferating bans on a vaguely defined
surgical procedure dubbed partial birth abortion. But it was
hard to tell from comments by the justices how far the court will go to
discourage further attempts by Congress and the states to ban particular
abortion procedures or tinker with the still-sound architecture of Roe v. Wade.
The court was hearing Nebraska's appeal of a lower federal court ruling
last year. That ruling tossed out the state's partial birth ban on grounds that
it placed an "undue burden" on a woman's exercise of her constitutional right to
abortion -- the standard the court set the last time it plunged into the
abortion wars eight years ago. The undue burden arose, the lower court said,
because the state criminalized a procedure that "has no fixed medical or legal
content" and was so ill defined that it was potentially applicable to common
techniques used for abortions early in pregnancy. Judging by the comments of a
number of the justices yesterday, including a key swing justice, Sandra Day
O'Connor, the court's decision in June is likely to agree with that conclusion.
The court's challenge is to frame a ruling that will discourage further attempts
to criminalize certain abortion methods before viability and will recognize the
threat to women's health and bodily integrity when politicians try to
circumscribe medical choices.
Today the court will turn to another
question that has galvanized the religious right -- the effort by a gay Eagle
Scout and exemplary scoutmaster named James Dale to regain his place in a New
Jersey troop. In a unanimous decision last year, New Jersey's highest court
declared that the Boy Scouts violated New Jersey's anti-discrimination law in
ousting Mr. Dale solely because he is gay. The Boy Scouts' appeal declares that
the organization has a right, under the First Amendment's protection for freedom
of association, to define its own "expressive character" by excluding gay youths
and adults from membership.
To bolster that position, the Scouts cite
the Supreme Court's 1995 decision that the St. Patrick's Day parade in Boston
could not be required to include a group marching under a gay-rights banner.
That was a sound ruling, but it does not fit this case. The Boy Scouts is not a
parade. It is a major civic group that says it is "open to all boys" and guided
by virtues like honesty and respect for others. Its essential message and
purpose are not changed because gay people happen to participate.
A more
apt analogy is the string of civil rights cases in which the court rejected
similarly overwrought free-speech claims raised to justify keeping women out of
various all-male bastions, like Rotary Clubs, and to justify discrimination
against blacks in public accommodations. This is a chance for the court to send
a strong message about tolerance and the continued vitality of some proud civil
rights precedents. The justices should not pass it up.
http://www.nytimes.com
LOAD-DATE: April 26, 2000
