La. statute on abortion overturned Judge speeds case toward high court

August 08, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

A federal judge in Louisiana ruled yesterday that he had no choice but to strike down the nation's toughest new anti-abortion law.

Immediately after U.S. District Judge Adrian G. Duplantier issued his ruling, the state said it would try to get the case before the Supreme Court by this fall, to test whether the justices are ready to overrule Roe vs. Wade, the 1973 decision establishing a woman's right to abortion.

In his ruling, Judge Duplantier made it clear that his own wishes were to have Roe vs. Wade cast aside. He indicated that he thinks the Supreme Court has been wrong about abortion since the beginning.

The judge had made clear to lawyers his desire to push a lawsuit over the new Louisiana measure to a quick decision, speeding the case on its way toward the Supreme Court. Normally, though, the state's appeal would go first to the 5th U.S. Circuit Court of Appeals.

But state Attorney General William Guste said he would ask the Supreme Court tomorrow to take the case up directly in its next term, starting Oct. 7, thus bypassing the Court of Appeals altogether.

"We believe this is the law to overturn Roe vs. Wade. That's what we've had in mind all along," Mr. Guste said in an interview with Reuters.

Although lawyers in the case had been planning to appear before Judge Duplantier in New Orleans next week, the judge issued his decision without waiting for a trial.

He wrote in his four-page opinion that no facts that could come out at a trial "could change the legal result dictated by Roe vs. Wade" -- the Supreme Court's 1973 decision establishing a woman's constitutional right to seek an abortion.

The Louisiana case is one of six constitutional suits against new state abortion laws that are now making their way through the federal courts. Louisiana's law has appeared to pose the greatest challenge to Roe vs. Wade because it goes further than any of the other new measures to outlaw abortion.

Under the new Louisiana law, abortions would be outlawed in almost all cases except when performed "for the express purpose of saving the life" of the pregnant woman. A woman who had an illegal abortion would not be punished, but doctors who broke the law would face one to 10 years in prison and fines of $10,000 to $100,000.

Judge Duplantier said that the Louisiana law was, in its key provisions, "identical" to the Texas anti-abortion law that the Supreme Court voided in the Roe decision.

Saying that he "wholeheartedly agreed" with Justice Byron R. White's dissent from the 1973 ruling and noting that he had felt a "temptation" not to follow the Roe decision any longer, Judge Duplantier nevertheless concluded that the Roe ruling "is still the law of this land. The Constitution of the United States means what the Supreme Court states that it means at any given time."

He rejected the suggestion of lawyers for the state that he should "anticipate" a decision by the Supreme Court overruling Roe vs. Wade. "No judge in the United States can overrule Roe vs. Wade; only the Supreme Court can do so," he declared.

The Louisiana law, passed over the veto of Gov. Charles E. "Buddy" Roemer III, is one of several laws against abortion passed by states after a 1989 Supreme Court ruling appeared to invite new legislation.

New laws in Pennsylvania and the territory of Guam have been ruled unconstitutional by federal judges, and those cases are now on appeal. New laws in Mississippi, North Dakota and Utah are now under challenge, too.

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