Pa. abortion case sets stage for test of Roe vs. Wade High court review possible by summer

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

WASHINGTON -- Lawyers for Pennsylvania abortion clinics and a doctor took a swift new appeal to the Supreme Court yesterday, apparently setting the stage for an early test of Roe vs. Wade -- perhaps before next summer.

The new case involves two Pennsylvania anti-abortion laws, most parts of which were upheld by a federal appeals court Oct. 21 in a decision that cast away a major part of the Roe ruling.

The lawyers' move directly to the Supreme Court yesterday, bypassing another optional round in the appeals court, was made public at a news conference here that seemed designed as much to declare a political manifesto as it was to disclose a legal maneuver.

News analysis

By filing the case in the Supreme Court, and doing so only 17 days after the appeals court in Philadelphia had ruled, the organizations and their lawyers moved to carry out quickly the twin strategy of litigating while politicking over abortion during the 1992 election season.

The speed of the maneuver enhanced the prospect that the court could review the case during the current term, which probably will end in late June. That would make the case a highly visible judicial drama being played out in the midst of the spring presidential primaries -- with, possibly, a result in time to help shape the abortion debate over the summer and fall.

The appeal posed in starkly simple form the issue it asked the court to decide: "Has the Supreme Court overruled Roe vs. Wade?"

Put that way, the question assumes the court already has cut back on basic abortion rights since the first ruling in 1973 and asks whether it meant to do away with those rights altogether. The new case thus might force the court to say yes or no.

Moreover, with the question phrased that way, the appeal very likely will lead the Bush administration to ask the court -- as it has done before -- to overrule Roe vs. Wade outright.

At the news conference, a lawyer and three leaders of groups that strongly favor a constitutional right to abortion talked at length about the interaction between the new constitutional case and the 1992 presidential and congressional election campaigns.

The lawyer, Kathryn Kolbert of the American Civil Liberties Union in Philadelphia, said, "It is absolutely critical for the American public to understand what is at stake here -- and then to take action in political forums."

Added Faye Wattleton, president of Planned Parenthood Federation of America: "If the court steps further away from its 18-year precedent, and allows even further erosion of abortion rights by the states, the American people must and will act to protect women from the whims of local governments."

One of the leaders went so far as to imply that the court, as a result of changes in its membership since the most recent rulings on abortion rights, definitely would overrule Roe vs. Wade. Kate Michelman, executive director of the National Abortion Rights Action League, said, "Anti-choice forces have the court, and now they have the case to overturn Roe vs. Wade."

There is no certainty at this point, however, that the court will take up the case before its summer recess. The state of Pennsylvania is readying a separate appeal to the highest court to try to revive the one part of the state law that was nullified by the appeals court: a requirement that married women tell their husbands before having an abortion.

The appeals court upheld requirements that women wait 24 hours to get an abortion after doctors gave them data about carrying the fetus to birth and that pregnant teen-agers under the age of 18 get the consent of one parent or a judge for an abortion.

Yesterday's appeal was filed for five clinics and a Pennsylvania physician who performs abortions, Dr. Thomas Allen.

The state has until Jan. 21 to file its own appeal, but need not

take that long to do so. Robert R. Gentzel, press secretary to state Attorney General Ernest D. Preate Jr., said: "We're not going to be rushed just because the other side has appealed."

The court probably would not take up either case until both were on hand. The state thus appears, at this point, to control the timing of the court's review, although the abortion-rights groups noted yesterday that they could ask the court to put their case on a fast track for decision.

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