THOMAS MAYO

It undoubtedly surprised many of the "experts' when the Supreme Court's decision in Webster came down last Monday. The majority opinion was written by Chief Justice William Rehnquist rather than by Justice Sandra Day O'Connor, considered by many to be the all-important "swing vote' on the abortion issue. Yet Justice O'Connor performed a key role in limiting the scope of the court's holding in Webster.

The way in which she put the brakes on the court's wholesale abandonment of Roe vs. Wade by the conservative majority may accelerate the court' s piece-by-piece dismantling of Roe. And, paradoxically, as a result of her opinion, the accelerated dismantling of Roe may be accomplished with the full participation of the liberal minority on the court.

In Webster, four of the court's abortion conservatives -- Chief Justice Rehnquist and Justices Byron White, Antonin Scalia and Anthony Kennedy -- were ready to overrule the two key foundations of Roe vs. Wade: The freedom to choose an abortion is a fundamental right that can be overridden only if the states can demonstrate a compelling interest, and a trimester approach is the correct measure of the strength of a state's interest in regulating abortion.

In Justice O'Connor's view, however, Webster was not the right case for such a ruling. Justice O'Connor was presumably reacting to the majority's decision not to strike down any provision of the disputed Missouri statue as unconstitutional under Roe. Only when a state or local law violates Roe, in Justice O'Connor's view, would the court then be forced to choose between the local law and Roe vs. Wade.

Until the court is presented with such a choice, Justice O'Connor will apparently insist upon a majority decision that is "no broader than necessary' to decide the case. Justice Scalia castigated her position severely (and with some justification) in his concurring opinion, but Justice O'Connor has proved to be the key swing vote that has kept Roe alive for at least one more term on the Supreme Court.

As a result of Justice O'Connor's "no-broader-than-necessary' strategy, the liberal minority on the court -- Justices William Brennan, Thurgood Marshall, Harry Blackmun and John Paul Stevens -- will have a hard choice in future abortion cases. They can vote to strike down local laws they believe unduly restrict the freedom to choose an abortion, which will provide Justice O'Connor and the four conservatives on the court with the "right case' to reconsider Roe. Or they can vote to uphold increasingly restrictive local laws, try to persuade a fifth justice to join them in such a vote and avoid a wholesale reconsideration of Roe.

Depending upon the strength of their commitment to the fundamental right/trimester analysis of Roe vs. Wade, the latter tactic may be their preference. In that case, the liberal wing of the court will be participating in, and even accelerating, the piece-by-piece dismantling of Roe's infrastructure.

Another version of the future is possible. At least one of the three abortion cases the court has agreed to hear the next term may be too restrictive for any majority of the court to reconcile with Roe. The Illinois case, for example, involves a statute that requires all abortion clinics to meet licensing requirements that are nearly as stringent as those applied to general hospitals. The court has already held, however, that states may not require first- and second- trimester abortions to be performed in general hospitals. This case may force a reconsideration of Roe.

If that happens, Justice O'Connor's vote will again be decisive. She is on record against the trimester analysis of Roe but is probably less hostile to a constitutional rule that would give states broad latitude to restrict abortions after a fetus is viable and limited power to regulate abortions before viability.

If a majority of the court settles upon viability as the key factor, the remaining two abortion cases on the court's docket for the next term are all the more significant. Most of the late abortions (which account for about 1 percent of all abortions) involve pregnant teen- agers, and the two abortion cases from Minnesota and Ohio involve the constitutionality of parental consent and judicial bypass procedures for minors seeking abortions.

Thomas William Mayo is an assistant professor of law at Southern Methodist University.
ILLUSTRATION(S): Justice Sandra Day O'Connor (DMN: Paul Kolsti)

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