Guam abortion ban upset Roe still law, court says

April 17, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The law that goes the furthest to criminalize abortion failed yesterday when a federal appeals court struck it down as a violation of Roe vs. Wade.

Just six days before the Supreme Court will hear pleas to overrule Roe, the basic 1973 abortion decision, the 9th U.S. Circuit Court of Appeals in San Francisco nullified a 1990 law in the U.S. territory of Guam, declaring:

"It would be both wrong and presumptuous of us now to declare that Roe vs. Wade is dead."

The Circuit Court said that the Supreme Court, in deciding Roe, went through the process of balancing pregnant women's interests against some states' interest in protecting fetal life, "and came to a result that has affected the lives and rights of millions of people."

It added: "It is not for this court to discard that precedent."

Two other federal appeals courts, however, have ruled that the Supreme Court itself has discarded at least a major part of the Roe ruling. Those two Circuit Courts -- in Philadelphia and Minneapolis -- have concluded that Roe is no longer "the law of the land."

The Philadelphia court's decision, issued last November in a Pennsylvania case, is the one the Supreme Court will be reviewing at a public hearing Wednesday morning.

If the Supreme Court does not strike down Roe altogether in that case and leaves some issues for a later case, it appears that the Guam case would be the next one to reach the justices next fall, if, as expected, Guam appeals yesterday's ruling.

The San Francisco court's opinion yesterday said of the Guam law: "It is difficult to imagine a more direct violation of Roe."

No other state law goes so far to criminalize abortion. The Guam law allows for pregnant women themselves to be prosecuted for the crime of abortion, and it makes no exceptions when the pregnancy is a result of rape or incest.

Moreover, abortion is a crime throughout pregnancy. There are only two exceptions: when two doctors, practicing independently of each other, agree that "there is a substantial risk" that the pregnancy, if continued, will threaten the woman's life, or "gravely impair her health."

The Circuit Court, in voiding the law, said that the "act gives not a nod toward Roe. With two narrow exceptions, it simply negates the rights and interests of the pregnant woman and forbids her to terminate her pregnancy from the moment of conception."

It then declared that, if Roe is still a binding decision, the Guam law is "clearly unconstitutional."

The tribunal then considered, and rejected, the territory's argument that the Supreme Court has undermined the Roe ruling by more recent decisions, in 1989 and 1990. Guam had argued that the recent voting patterns of five of the justices show that Roe has lost majority support.

"The bits and pieces assembled by Guam," the San Francisco court declared, "fall short of compelling us to do that which the Supreme Court itself has declined to do -- overrule Roe vs. Wade."

The court chastised the territory's lawyers for making little mention of the interests of pregnant women. "No matter how it is characterized," it said, "the right of a woman not to be forced to endure a pregnancy and birth is an extremely important one."

If states were free to forbid almost all abortions in the interest of protecting fetuses, the Circuit Court said, they could completely "override" any interest of the woman.

It added: "A state could maximize that potential [of human life] by forbidding contraception, or even by requiring regular sexual intercourse by all fertile persons. The prospect is absurd, of course, because there are highly important constitutional rights that would be interfered with by such a measure."

The ruling by the three-judge panel was unanimous. It was written by Circuit Judge William C. Canby Jr. of Phoenix and supported in full by Circuit Judges Dorothy W. Nelson of Pasadena, Calif., and Herbert Choy of Honolulu. Judges Canby and Nelson were appointed by former President Jimmy Carter, Judge Choy by former President Richard Nixon.

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