Administration brief asks high court to overturn Roe vs. Wade completely

April 07, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Bush administration "strongly" urged the Supreme Court yesterday to overrule Roe vs. Wade and send the abortion issue back to state legislatures.

If the court is not ready to do that, the administration said in a new legal brief filed by the Justice Department, it should throw out at least half of the Roe ruling and let legislatures adopt any "reasonable" limit on abortion.

This is necessary, it argued, to allow for laws that would protect the life of the fetus "throughout pregnancy."

"The protection of innocent human life -- in or out of the womb -- is certainly the most compelling interest that a state can advance," it argued.

"In our view," the brief added, "a state's interest in protecting fetal life throughout pregnancy, as a general matter, outweighs a woman's . . . interest in abortion."

The administration urged the justices to uphold every part of two Pennsylvania laws that are under challenge by abortion clinics and a Pittsburgh doctor.

Its support extended to the one clause that a lower federal court had struck down: requiring married women to tell their husbands before getting an abortion.

The government reminded the court that it and the Reagan administration had told the court several times that "Roe vs. Wade was wrongly decided and should be overruled." It said, "We strongly adhere to that position in this case."

That declaration put an end to speculation -- and there had been some -- that, because the abortion issue may be a prominent issue in this year's presidential election campaign, the administration might not again attack Roe directly.

Abortion rights groups, however,have been operating on the assumption that President Bush's administration would not relax its views, and that, therefore, they could work for the president's defeat largely on that issue alone.

Those groups have also been operating on the assumption that the Supreme Court will use the Pennsylvania case either to overrule Roe outright or to reduce it to virtual extinction.

The new government brief offered a review of history that proves, it said, that "it cannot persuasively be argued that the interest in having an abortion is so deeply rooted in our history as to be deemed 'fundamental.' "

In the court's first abortion decision in in 1973, it had declared that a woman has a "fundamental" constitutional right that could be limited or taken away only if a state found that was virtually a necessity.

While conceding that abortion is a matter of heated controversy in America, the administration said that the death penalty is, too, "yet the Constitution leaves such questions in the main to the political process to decide."

The administration suggested what amounts to a fallback position, should the court hesitate to overrule Roe completely in this term.

It argued that the court should cast aside that part of the Roe ruling that says states must have the strongest justification for any limit on abortion.

In place of that, it said, the court should adopt the view that three justices did in 1989: allowing any restriction that would be a "rational"way to serve any "legitimate" government interest.

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While it said that approach would give state legislatures a good deal of leeway, it argued that this would not be a "toothless" standard.

Two of the current nine justices -- David H. Souter and Clarence Thomas -- have never taken part in an abortion ruling, and their views remain almost completely unknown.

The court is to hold a hearing on the Pennsylvania case on April 22 and is expected to reach a final decision by early in July.

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