WASHINGTON -- The state of Louisiana's move to get the swiftest possible test of the Supreme Court's willingness to take away the right to abortion faltered yesterday in a federal appeals court, but state officials immediately made plans to keep trying.
The 5th U.S. Circuit Court of Appeals refused, without comment, to ask the Supreme Court to give it immediate guidance on whether abortion rights will continue to exist under the Constitution. Had theappeals court agreed to ask for that kind of guidance, it would have brought the Supreme Court into the middle of the Louisiana case.
The appeals court also refused, without explanation, to shorten the schedule for its own ruling.
State Attorney General William J. Guste Jr. announced that he would send a plea directly to the Supreme Court, asking it to take the Louisiana case away from the appeals court and decide it itself. The case, he said, raises "the most important social issue of our generation. . . . I will urge the Supreme Court to . . . not await the usual appellate process."
Behind the state's continuing maneuvering is officials' strong desire to give the Supreme Court an early chance to overrule the 1973 abortion rights decision, Roe vs. Wade. It is expected that, sooner or later, the justices will take on a test case, and Louisiana officials want it to be their case.
State officials concede that their new anti-abortion law goes so far that it probably cannot stand unless Roe vs. Wade is overturned. In fact, the law was made deliberately broad to provide just such a test.
It is considered the toughest of the nation's new anti-abortion laws. Under it, doctors performing abortions would face one to 10 years in prison and fines of $10,000 to $100,000.
Since the legislature adopted the law in June over the governor's veto, state lawyers have responded to a constitutional challenge by trying to speed up the case. They cleared the first hurdle rapidly when a federal judge struck down the law as unconstitutional, saying it could not be enforced as long as Roe vs. Wade remained intact.
Then, state lawyers asked the appeals court in New Orleans to rush the case through that level and, in the meantime, get some guidancefrom the Supreme Court on whether Roe vs. Wade was still to be followed.
The Louisiana lawyers told the appeals court that fetuses were dying because women were exercising their abortion rights under Roe, and thus it was urgent for the test case to move swiftly.
Lawyers for the challengers said that the new law was too complex to be reviewed on a fast-track schedule, either in the appeals court or the Supreme Court. Yesterday, the appeals court sided with the challengers, and put the case on a schedule that may not lead to a decision even at that level for another six months.