When his first abortion case came before the Supreme Court last year, new Justice David Souter seemed to express distaste for government regulations that forbid physicians in federally funded family planning clinics from telling women, even when they asked, even when their health or life was in danger, to mention abortion or to refer them elsewhere. Justice Souter said to the U.S. solicitor general, "You're telling us that the physician cannot perform his usual professional responsibility, that [the government] in effect may preclude professional speech."
The solicitor general denied this, but it could not be clearer that is what the regulations require. They read: "[If] a pregnant woman requests information on abortion. . . the project counselor tells her that the project does not consider abortion an appropriate method of family planning."
Surprisingly, lamentably, Justice Souter joined the four mosconservative members of the Supreme Court Thursday to uphold those regulations. It is entirely possible this vote and decision may telegraph a later vote and a later decision on the very constitutionality of the right to an abortion for all women. The majority was reached without Justice Sandra O'Connor. She had been all that stood between efforts to overturn the landmark 1973 decision upholding the right to abortion, Roe vs. Wade. Her vote is no longer enough.