Souter questions government stand on abortion advice

October 31, 1990|By Los Angeles Times

WASHINGTON -- The argument had gone on for nearly an hour when the newest member of the Supreme Court leaned forward to his microphone.

The issue before the justices was whether the Bush administration may prevent doctors in federally funded clinics from telling poor, pregnant women about abortion.

Yesterday's argument marked the first abortion dispute to reach the high court since its liberal leader, Justice William J. Brennan Jr., retired. Now, the outcome of the case would likely depend on his successor, Justice David H. Souter.

The case at hand does not directly confront the landmark Roe vs. Wade ruling and the constitutional right to choose abortion that it affirmed. But it does test whether the conservative court will let the government use its regulations to make abortions more difficult to obtain.

Although the questions a justice asks during oral arguments do not necessarily indicate how he will rule, Souter clearly seemed troubled by the government's stand.

Under questioning, Bush administration attorney Kenneth W. Starr conceded that under the government rules, a clinic doctor has no choice but to refer a pregnant woman to a prenatal center, even if his examination revealed that her pregnancy could threaten her life.

"You are telling us the physician cannot perform his normal professional responsibility," Souter said. "You are telling us that [the government] may in effect preclude professional speech."

Souter, joined by Justices John Paul Stevens and Sandra Day O'Connor, repeatedly questioned whether the government policy unduly restricts doctors and jeopardizes the health of women.

If a skeptical Souter votes to strike down the government rules, he could tilt the decision in favor of the court's shrinking liberal bloc. Even so, his vote in this case will not necessarily signal his views on broader abortion questions or the Roe ruling.

The four court conservatives -- Chief Justice William H. Rehnquist and Justices Byron R. White, Antonin Scalia and Anthony M. Kennedy -- sounded during Tuesday's arguments as if they supported the Bush administration policy.

If so, Souter and O'Connor will cast the deciding votes.

At stake is the advice given to 5 million poor women who each year visit some 4,000 federally funded family planning clinics. Since 1970, Congress has funded these so-called "Title X" clinics to provide contraception, pregnancy testing and physical exams to poor women and teen-agers.

Congress forbade the clinics from offering or paying for abortions. In 1988, the Reagan administration went one step further by issuing rules forbidding doctors or nurses from referring pregnant women to abortion clinics or even mentioning abortion as an option. However, the rules say a doctor "must" refer a pregnant patient for "appropriate prenatal" care for the benefit of her "unborn child."

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