Arguments at high court center on abortion rights Roe ruling sought in Pa. challenges

April 23, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court overcame an initial reluctance yesterday to talk about the future of Roe vs. Wade and then looked closely at the legal rights women would have without that basic abortion decision.

At the end of a one-hour hearing, there was no clear indication that abortion foes on the court had yet found the fifth vote they would need to overrule Roe outright or curtail it sharply. Four justices are strongly opposed to abortion rights now.

A determined effort by a women's rights lawyer to talk about the fate of Roe, rather than about the specifics of two Pennsylvania laws the court is reviewing, appeared to have helped put Roe prominently at issue.

Kathryn Kolbert, an American Civil Liberties Union attorney from Philadelphia, was allowed to proceed without interruption for an unusually long time with soaring rhetoric, praising Roe and insisting that "thecentral question" at stake was whether it remained the law.

She simply bypassed suggestions that she move on to the Pennsylvania laws' specific provisions, until she was nearly out of time.

As the hearing went on, the justices got actively involved and probed -- sometimes aggressively -- to discover the logical and real-world implications if the court were to change its mind about abortion rights.

The Bush administration lawyer, Solicitor General Kenneth W. Starr, came under tough questioning by Justice John Paul Stevens, an abortion rights supporter. At one point, as Mr. Starr resisted talking about the logical consequences of the position he was advocating, both Justice Stevens and Justice David H. Souter mildly rebuked him.

Justice Souter, who has not yet voted on an abortion rights case, told Mr. Starr: "You're asking the court to adopt a [new constitutional] standard, and I think we ought to know where the standard would take us."

The other member of the court who has yet to take a position directly on the right to abortion, Justice Clarence Thomas, sat silent throughout the hearing.

Justices Souter and Stevens tried to get the federal government's lawyer to concede that the relaxed constitutional rule he was suggesting -- permitting any anti-abortion rule that was "rational" -- would lead to a complete ban. Mr. Starr said he thought it "best not to answer these [questions] in the abstract."

Ultimately, he said that states would have to allow an exception, to any rule, if necessary to save a pregnant woman's life.

When the justices did discuss the specifics of the Pennsylvania laws, their most critical questions focused on a clause -- rather unusual in anti-abortion laws -- requiring most married women to tell their husbands before getting an abortion.

At one point, Justice Sandra Day O'Connor suggested that that might amount to coercing women into a form of officially mandated speech. She also displayed doubts, which she had not exhibited before, about parts of the Pennsylvania laws that ,, mandate what doctors must say to pregnant patients before an abortion.

During the state's turn to argue yesterday, Pennsylvania Attorney General Ernest D. Preate Jr., came under heavy questioning, particularly from Justice O'Connor. At one point, she led him into a concession that, if a state were trying to protect fetal life, it could go so far as to require women to tell their sex partners that they were going to use an after-the-fact birth control method.

As Mr. Preate seemed to struggle in his responses, Justice Harry A. Blackmun -- the author of the Roe decision and its champion -- sat rocking gently in his chair, with a smile very apparent on his face.

Justice Blackmun also chastised the state's lawyer for stressing that the Roe decision itself did not create a right to "abortion on demand."

"I'm not so sure that's so important," said Justice Blackmun. "Roe itself said that." Then, the justice asked: "Have you read Roe?" Quietly, Mr. Preate replied: "Yes, I have."

Ms. Kolbert, representing the five abortion clinics and the Pittsburgh doctor who are challenging the Pennsylvania laws, drew some mild criticism from Justice Anthony M. Kennedy for putting all the stress of her argument on the fate of Roe.

He said that it was her option to "argue that Roe can survive only in its most rigid formulation," but suggested that that was not the only position that could be argued.

Even so, Ms. Kolbert persisted in the strategy developed by women's rights lawyers, of seeking to confront the justices directly with Roe's fate.

She also sought to bolster her case by suggesting that it would not be possible logically for the court merely to carve out the Roe decision for overruling. She argued that "a century of this court's privacy decisions" -- including access to birth control devices, and the right to choose one's marriage partner -- also would have to be scuttled.

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