U.S. anti-abortion rule for clinics is upheld Court, 5-4, backs counseling ban

May 24, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun Clinics' new rules Washington Bureau of The SunWashington Bureau of The Sun

WASHINGTON -- Splitting 5-4, the Supreme Court upheld yesterday a government order that will forbid doctors and nurses at federally funded clinics to talk about abortion with poor women seeking to avoid pregnancy or childbirth.

That ban was part of sweeping anti-abortion regulations written for those clinics by the Reagan administration three years ago. All parts of the rules were found by the court majority yesterday to be legal under a 1970 federal law and valid under the Constitution.

The 1988 rules, which had been delayed by lower court order, have never gone into effect but are now expected to be imposed within 30 days on about 5,100 clinics nationwide, including a number in Maryland. The clinics mostly serve poor women, slightly more than 4million of them nationwide, who get reproductive health and other medical services there.

Because there was a clear-cut majority of five for the court's broad new ruling, interest groups on both sides of the abortion controversy began speculating that the court might be a good deal closer to the point of overruling Roe vs. Wade, the basic 1973 Supreme Court ruling creating a right to abortion.

The decision had one immediate effect: It shifted back to Congress the fight over abortion rights at the federally funded clinics. Bills are pending on Capitol Hill to wipe out most of the rules that were upheld by the court, and sponsors may seek a committee vote on them as early as next week.

But an even broader fight looms in Congress: an attempt by abortion-rights groups to get Congress to pass a federal law that would create a new federal right to abortion independent of the Constitution -- thus assuring that right even if Roe vs. Wade were ultimately overturned.

President Bush, however, would be expected to veto both a narrower measure on the clinics and abortion and a broader abortion-rights bill, and legislative observers doubt that there would be enough votes in Congress to override such vetoes, thus keeping the issue alive in politics and in state legislatures.

The court's decision yesterday, written by Chief Justice William H. Rehnquist and announced by him in brief and unemotional remarks on the bench, was the only abortion ruling the court faced in its current term.

It was a two-part decision:

First, the court said the government was justified in 1988 in interpreting a 1970 law to require a flat ban on abortion counseling and referrals by "family planning clinics" that get federal funds under a $200 million-a-year program. While forbidding clinic doctors and nurses from mentioning abortion as an option for pregnant women, the rules also require the clinics to send pregnant women to get services for carrying their pregnancies to childbirth.

The majority said the 1970 law was meant to confine the clinics primarily to providing birth control services -- "pre-pregnancy preventive services" -- and not to advise pregnant women about their options, other than suggesting they get care for their health during pregnancy.

Since the 1970 law forbids clinics from performing abortions directly, it was "permissible" for the government to read that as an indication that abortion counseling and referrals should also have no place in the clinics' operation, the court said.

Even though the government, before 1988, had allowed clinic staffs to discuss with their patients the possible need for abortion and to refer them for abortions, the government was justified in shifting its position, in part because officials had detected "a shift in attitude against the 'elimination of unborn children by abortion,' " according to the chief justice.

Second, the court ruled that no part of the 1988 rules violate a woman's right to seek abortion, her right to talk over her health with a doctor, or the right of doctors or nurses to give the medical advice they think is proper.

There is no constitutional duty for the government to subsidize those activities, the majority said. In any event, all of that, it added, can go on outside federally financed clinics, or in separate facilities set up by those clinics but not using federal funds.

"Here," the chief justice wrote, "the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized."

The chief justice's opinion was supported in full by three other justices who, with him, have sharply criticized the Roe vs. Wade decision: Justices Anthony M. Kennedy, Antonin Scalia and Byron R. White. It also was supported fully by the newest member of the court, Justice David H. Souter -- the first time he has voted on an abortion question.

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