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Supreme Court Prepares Ruling on Abortion Rights

By Ruth Marcus
The Washington Post

Washington

The Supreme Court, one vote away from eliminating the constitutional right to abortion, wrestled Wednesday with the implications of such a historic step as it considered a challenge to a Pennsylvania abortion law.

In a long-awaited test of the conservative new court's views on abortion, the justices remained largely silent as American Civil Liberties Union lawyer Kathryn Kolbert urged them to reaffirm Roe vs. Wade, the landmark 1973 decision establishing abortion as a fundamental right.

They were far more active in quizzing Pennsylvania Attorney General Ernest D. Preate Jr. and U.S. Solicitor General Kenneth W. Starr about the individual provisions at issue in Planned Parenthood of Southeastern Pennsylvania v. Casey and what it would mean to strip constitutional protection for abortion.

Justice David H. Souter, whose views on the abortion question are unknown, pressed Starr about whether an outright prohibition on abortion -- with an exception only to save the life of the woman -- would be allowed under the permissive standard of review urged by the Bush administration. Utah, Louisiana and Guam have adopted laws that bar abortion under most circumstances.

Starr resisted Souter's question, saying, "I think it best not to answer these in the abstract." Souter continued, telling Starr, "You're asking the court to adopt a standard and I think we ought to know where the standard would take us."

Souter's general voting alignment with Justice Sandra Day O'Connor has led to speculation that they might pair up to forge a middle ground on the court -- a position that may or may not be relevant depending on whether the four justices known to oppose the Roe decision can attract a fifth and decisive vote. Only two solid abortion-rights advocates, Justices Harry A. Blackmun and John Paul Stevens, remain on the court.

Justice Clarence Thomas, who refused to divulge his position during Senate confirmation hearings last fall, was the only justice who did not speak during the hour-long oral argument. A ruling in the case is expected by July, and will likely be a major issue in the November elections.

The Pennsylvania law at issue is one of a spate of abortion restrictions enacted after the high court's 1989 ruling in Webster vs. Reproductive Health Services, in which four justices voted to remove abortion from the list of specially protected constitutional rights.

The Pennsylvania law requires married women to notify their husbands of the intention to have an abortion; imposes a 24-hour waiting period on women seeking abortions; and requires doctors and counselors to provide information that one side characterizes as the basis for "informed consent" and the other views as "biased counseling."

Nearly identical provisions have been overturned by the court, as recently as 1986, as intrusions on the right to abortion established in Roe.

The court in Roe said restrictions on abortion must pass "strict scrutiny," a tough test that meant they would generally be struck down.

Having lost a majority to support that approach, the court in Casey is presented with a choice betwen two alternatives.

One, suggested by O'Connor, is whether abortion regulations constitute an "undue burden." The other, endorsed by the Bush administration and at least four justices, would ask simply whether the abortion regulations have a "rational basis" -- whether they further the state's legitimate objective of protecting potential human life.

O'Connor questioned Preate about the husband notification provision, terming it "curious" that the state did not "require notice to all fathers."

She then asked about forms of birth control, such as intrauterine devices, that act as "abortifacients" by preventing implantation of the fertilized egg. Could the state, protecting its interest in preserving fetal life, require all women to inform their sexual partners of their use of such contraception, she asked.

O'Connor also expressed repeated interest in whether the mandatory counseling provisions and husband notice provisions violated the First Amendment guarantee of free speech. "The state is compelling a woman to say something to her husband," O'Connor said. "I would have thought perhaps compelling speech would get us right into a First Amendment area."

Preate said that because 95 percent of married women in Pennsylvania inform their husbands voluntarily, the spousal notice law would actually affect very few women. Stevens said: "Well, if no one's affected by the statute, what is the state interest in upholding the statute?"

During his 10-minute argument in support of the Pennsylvania law, Starr left open the possibility that fetuses might be "persons" protected by the Constitution and that states, therefore, could be not only permitted to outlaw abortion, but required to do so.

In Roe, the court concluded that the 14th Amendment -- which prohibits states from depriving any "person" of life without due process of law -- "does not include the unborn."

In the Roe opinion, Blackmun pointed out that considering fetuses as "persons" under the Constitution could require states to treat abortion as harshly as murder and bar states from making exceptions in their antiabortion laws for saving the life of the mother.

No justice has endorsed the view that fetuses are "persons" under the Constitution. However, in a speech that became controversial after his nomination to the high court, Thomas praised an article taking such a position.

"What would flow from that position could be a requirement that every state ban abortion," said Marcia Greenberger of the National Women's Law Center. "The fact that it was explicitly left open by the solicitor general should cause people to sit up and take notice of what the future might hold."