U.S. anti-abortion rule for clinics upheld Justice Souter's vote is crucial

May 24, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Justice David H. Souter, who joined the Supreme Court last year with one key question about him left unanswered, sat silently at the end of the bench yesterday as his first real answer was announced for him.

Without mentioning Justice Souter by name, Chief Justice William H. Rehnquist revealed to a sparse crowd in the courtroom that the newest justice had helped make a one-vote )) margin to uphold broad anti-abortion regulations issued by the government in 1988.

It was, clearly, a "landmark" decision, and Justice Souter's vote was seen immediately as both historic and of potentially profound significance, suggesting to some that his vote might be available to help scuttle Roe vs. Wade, the court's basic abortion ruling.

In Senate hearings last year, he had steadfastly refused to answer any questions about his views on abortion, as a medical, social or constitutional issue. That silence was the only factor his opponents -- mainly, feminist groups -- had sought to use against him.

In Supreme Court arithmetic, and especially in the arithmetic that controls the abortion issue, Justice Souter's vote on any issue in that controversy has been seen as potentially decisive.

Four of his colleagues -- the ones with him in the majority yesterday -- have indicated that they either want Roe scuttled or at least narrowed sharply. Justice Sandra Day O'Connor, who has been critical of the 1973 ruling but who has also been cautious about confronting its possible overruling, was seen as a fifth vote -- someday -- to curb Roe's reach, if not to cast it aside.

With Justice Souter's vote yesterday, the prospect began to emerge of a five-justice anti-Roe majority -- even without Justice O'Connor.

That seemed to explain the negative reaction of abortion-rights groups yesterday. Said Barbara Radford, executive director of the National Abortion Federation: "I read this to mean that he clearly is open to overruling Roe." Said Kate Michelman, executive director of the National Abortion Rights Action League: "Any hope that Justice Souter would respect our fundamental right of privacy and right to choose expired this morning." Said Judith Lichtman, president of the Women's Legal Defense Fund: "When David Souter showed his true colors today, the majority of the Supreme Court put Roe vs. Wade in immediate peril."

On the other side, the reactions were less pointed. Douglas Johnson, legislative director of the National Right to Life Committee, said he had felt "cautious optimism" when Justice Souter was nominated for the court that he would vote to overrule Roe if that question came up directly, and he said that now he felt "a millimeter" more optimistic: "I'm now guardedly optimistic." Wendy E. Stone, public affairs associate for Americans United for Life, said of the justice: "He is not hanging on to the old Roe position. He sees the government as having the prerogative to protect unborn life, if it wants to."

It will be another year perhaps before Justice Souter's vote on abortion will be tested further, possibly on the ultimate question of keeping or scuttling the Roe decision.

Test cases from Pennsylvania, Utah and the territory of Guam -- each involving a broad state law that seems to contradict the Roe decision directly -- are working their way up to the court and might begin arriving in a matter of months.

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