Justices wade into Roe controversy Pennsylvania case reopens question of abortion as constitutional right.

April 22, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court reopened the abortion controversy today, with several justices showing concern about far-reaching state controls on women if Roe vs. Wade is overruled or even cut back sharply.

Justice David H. Souter, who has never taken a public position on abortion rights, and Justice Sandra Day O'Connor, whose current stance is somewhat in doubt, tried to get government lawyers to describe the full implications of a decision that would say abortion is no longer a fundamental constitutional right, as Roe said it was.

The questioning led Pennsylvania's lawyer, state Attorney General Ernest D. Preate Jr., to concede that states would have the power even to require women to tell their sex partners that they planned to use a kind of birth control method that could bring about an abortion if the woman became pregnant.

At first, Mr. Preate said that kind of requirement would be "problematic," as a constitutional matter, but then said it would be legal if a state imposed such a duty to try to protect fetal life.

Justice John Paul Stevens, a strong supporter of abortion rights, vTC tried -- without real success -- to force the federal government's lawyer, U.S. Solicitor General Kenneth W. Starr, to say whether the government's approach of allowing states sweeping power to regulate abortions ultimately would mean that states could outlaw abortion in all circumstances.

When Mr. Starr sought to avoid a direct answer, both Justice Stevens and then Justice Souter tried to pin him down.

Mr. Stevens said he interpreted the government's preference for only limited protection for pregnancy women as being the equivalent of a no-exceptions ban on abortions throughout pregnancy.

Mr. Souter also expressed some impatience with the government lawyer's answers, saying: "You're asking this court to adopt a [new] standard. We need to ask where it would take us." The solicitor general said that states at least could not act in an "arbitrary and capricious" way in trying to stop abortions, and suggested that it would be "arbitrary" if an abortion ban deprived a woman of "a right to life."

Justice Antonin Scalia, who has urged the court to overrule the Roe decision, sought several times to shore up the arguments of the Pennsylvania and federal government attorneys. Mr. Scalia fervently argued that the Constitution leaves the states free to declare that a fetus is a "person" and thus is entitled to be protected throughout pregnancy.

As the hour-long hearing began, an American Civil Liberties Union lawyer resisted repeated efforts by the justices to get her to talk about the specific parts of the two Pennsylvania anti-abortion laws under review by the court.

Instead, that lawyer, Kathryn Kolbert of Philadelphia, held tenaciously to her core argument that the court had to say, now, whether abortion remains a fundamental right.

Both Justices O'Connor and Anthony M. Kennedy sought to divert her away from her plea that Roe be reaffirmed, but Ms. Kolbert steadily laid out her arguments for that.

She said that, if Roe's basic holding that abortion is a fundamental right remains the law of the land, every part of the Pennsylvania laws would have to be struck down.

But she also sought to portrary to the justices the dire consequences, far beyond abortion rights, that she foresaw if the court concluded that Roe was no longer the law.

She said that "a century of this court's privacy decisions would be in jeopardy," including decisions that upheld the right of married couples and single partners to use birth control, and the right of individuals to choose whom they would marry, including someone of a different race.

Ms. Kolbert also said that the court might even put in jeopardy its rulings that racial segregation in the schools is unconstitutional.

It was apparent that the court, although perhaps somewhat reluctant to do so, was in fact taking a basic new look at the nature of the right to abortion. The hearing thus left the clear impression that a major ruling on that right could emerge when the justices decide the Pennsylvania case, sometime before early July.

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