Souter questions U.S. 'gag rule' against abortion

October 31, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The newest Supreme Court justice, David H. Souter, finally broke his silence on abortion yesterday, putting on public display some doubts about sweeping government rules forbidding doctors at federally funded clinics from even mentioning the subject.

Justice Souter joined several of his colleagues in rigorous questioning of a government lawyer who was trying to defend the controversial "gag rule" imposed on family-planning clinics by the Reagan administration in 1988.

At one point, the new justice openly wondered whether the government rule had gone beyond what Congress had authorized -- a conclusion that, if embraced by the court, could scuttle the rule altogether.

When Justice Souter's nomination to be a justice was under review by the Senate earlier this fall, he drew some opposition by refusing to say anything about his views on abortion -- an issue upon which he could cast a deciding vote because of the deep split on it among his colleagues.

Yesterday, the court took up the only abortion case it is likely to decide during its current term, giving Justice Souter his first opportunity to start taking a position. The case does not require him, or the court, to say whether the right to abortion will continue to exist, and that was not mentioned at the one-hour hearing in a test case brought by New York-area clinics, the challengers to the federal rule.

But the case does test his and the court's views on how far the government can go to make sure that poor pregnant women, visiting government-subsidized clinics, are not given the option of an abortion. Under the federal rule, doctors may not discuss abortion as an option but are required to tell their pregnant patients about ways to continue their pregnancies and have healthy babies.

Solicitor General Kenneth W. Starr, defending that position yesterday, said the rule forbidding clinic doctors from giving any other medical advice was intended to be so restrictive that a doctor could not even tell a patient to get her tonsils out, if the doctor thought that was appropriate treatment.

The government-funded program, he said, was designed solely as a pregnancy-preventing one. If a woman gets pregnant or has other medical conditions not related to birth control, she "graduates" from the program and must go elsewhere for medical care, he contended.

Mr. Starr's argument was about half-finished when Justice Souter, getting involved for the first time, began questioning him about what clinic doctors could do legally if confronted by a patient whose health seemed to be "in some imminent danger."

The justice asked whether the doctor could talk about abortion if, medically, that was "one appropriate response." Mr. Starr said the rule would allow the doctor only to say, "You need treatment," unless the pregnant woman faced an emergency.

Justice Souter retorted that the government view went beyond what Congress had allowed in funding the clinics and actually barred a doctor from reacting professionally when the doctor "sees a standard professional need to give advice." The solicitor general contended that those kinds of limits were within the law.

"You're telling us," Justice Souter retorted, "that the physician cannot perform his usual professional responsibility . . . that [the government] in effect may preclude professional speech?" That, Mr. Starr said, was not what was intended.

Justices Anthony M. Kennedy, Sandra Day O'Connor and John Paul Stevens -- three members of the court whose votes, like Justice Souter's, could control the outcome -- also joined actively and somewhat skeptically in the questioning of Mr. Starr.

The clinics' lawyer, Harvard law professor Laurence H. Tribe, sparred frequently with Justice Antonin Scalia, who used his questions to make comments generally favorable to the government controls on the clinics.

After the hearing, another clinic lawyer, Rachael N. Pine of the American Civil Liberties Union, said the justices' reaction left her side "guardedly optimistic." Noting "the strong questioning" by Justice Souter and the questions posed by Justices O'Connor and Stevens, Ms. Pine said those justices were "all critical votes to us."

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