Souter, silent on abortion, backs right to privacy

September 14, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Supreme Court nominee David H. Souter told senators yesterday that the Constitution gives married couples a basic "right of privacy" about childbearing, but he refused to say anything at all about whether that includes a right to abortion.

Smiling at times, sober at others, speaking confidently and at length and displaying no tension, the little-known New Hampshire judge began the process of trying to win votes in the Senate Judiciary Committee by seeking to dispel lingering doubts about his views on the rights of minorities and women.

He also sought, by revealing personal feelings about people in trouble whom he had tried to help, to dispel an image of himself as a remote, scholarly bachelor with no real awareness of the way most people live their lives.

He used his answers to the very first round of questions to try to show a sensitivity to concerns about government intrusion into people's lives, and to display a firm commitment to help wipe out race and sex bias and other forms of "invidious discrimination" in American life.

It was during his earliest answers, to questions from Judiciary Committee Chairman Joseph R. Biden Jr., D-Del., that Judge Souter said flatly that there is a constitutional "right of privacy" that provides protection for civil rights not specifically mentioned in the Constitution's words -- a view that appears to put him at odds with the most conservative members of the current court.

He went the furthest in embracing a right of privacy in discussing several Supreme Court rulings -- dating back to 1965 -- giving couples the right to make decisions about birth control and childbearing without government interference. But he limited his endorsement of those rulings to those involving couples who are married, and not involving abortion.

For marital partners, he said, the constitutional right of "marital privacy" is considered to be "fundamental" -- that is, it ranks so high that the right can be overcome only if a government agency has an absolute necessity to do so.

The right of privacy, he said, is part of the nation's constitutional heritage of keeping governmental power over individuals to a minimum -- a view that has led some liberal justices to find a variety of new rights beyond those specifically covered by the Bill of Rights.

One of those unmentioned rights established by the court is abortion. Judge Souter acknowledged that the "right of privacy" that he believes to exist is also the foundation of "the one decision that is on everybody's mind and everybody's lips" -- the basic abortion ruling in Roe vs. Wade in 1973.

But, no matter how liberal senators tried to get him to say what he thinks about that constitutional ruling, Judge Souter said it would be "inappropriate" for him to discuss it. Because the court is so evenly divided on abortion issues, he may be able to cast a decisive fifth vote.

Although refusing resolutely to discuss any views he might have on abortion as a legal matter, he did tell of an experience -- from 24 years ago -- as a way of indicating that he feels "empathy" toward women confronted with unwanted pregnancies and considering abortion. He recalled being a dormitory counselor at Harvard and agreeing to the request of a freshman student to counsel a girlfriend who was "about to have a self-abortion."

He said, solemnly: "I learned that afternoon what was at stake. Since that time, I hope I have learned what is at stake on both sides of this controversy."

He added that he appreciates as fully "the moral force" of the views of those who see a need for abortions as he does of those who are opposed as a matter of conscience.

Judge Souter also mentioned his service on the board of a Concord, N.H., hospital that allowed abortions in its facilities.

Thus, he said, staying away from the legal question of abortion, the Senate could be confident that he had made a record that showed that "I am open enough to listen." He said he would ask the committee to "judge me on that record."

Insisting that he has learned, as a judge, that every decision a court makes has an impact on real people and can make a major change in people's everyday lives, he promised that, if approved by the Senate to be a justice, he would carry out his responsibilities fully sensitive to the impact of his decisions on "all the people of the U.S."

Discussing discrimination, Judge Souter said that there was "nothing more tragic and demanding more energy from all of us than the removal of societal discrimination in matters of race and other forms of invidious discrimination."

Although Judge Souter and those working for his nomination have displayed confidence about the likely outcome of Senate review, and he personally gave that impression in public during his televised testimony, he and his sponsors made clear at the hearings that their one continuing concern was over what might be called the "lifestyle" issue.

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