Justices refuse to allow woman to abort by pill Ruling leaves ban on import in effect

July 18, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court refused yesterday, by a 7-2 vote, to allow the first abortion-by-pill in this country, rejecting a California woman's request for legal permission to take a dose of "RU-486."

In the court's first-ever comment on legal issues surrounding the highly controversial French-made pill, a majority cast doubt on the opening round of court challenges to the government ban that keeps the abortion pill from being brought to the United States, even for individual use.

The ruling was at least a temporary medical setback for Leona Benten, an unemployed social worker from Berkeley, Calif., who is almost eight weeks pregnant. She does not want to continue the pregnancy, and she has voiced strong fears about having an abortion by surgery.

The court's action was not a decision to uphold the government ban formally, although that will be the temporary practical effect.

The majority said only that the California woman and her lawyershad not convinced the court that they would be able ultimately to prove that the ban violated federal drug laws as well as the government's own regulations.

At the same time, however, the court expressly left open a chance to press a constitutional challenge to the ban -- a challenge that one of the dissenting justices pointedly said should succeed.

That justice, John Paul Stevens, indicated that the federal government's ban on RU-486 is unconstitutional under the court's most recent ruling on women's abortion rights. In the court's ruling late last month, a 5-4 majority declared that restrictions will be struck down if they impose an "undue burden" on access to abortion.

The majority took note of Justice Stevens' views but said the constitutional question had not been raised in the new appeal, and "we express no view on the merits" of any such issue.

Ms. Benten's temporary legal defeat apparently will lead to a surgical abortion for her. She told the Associated Press that would be the next step. Her lawyers, however, said they were still considering other options -- including possible last-minute pleas to President Bush and Congress -- that they hoped might yet assure Ms. Benten of an abortion by RU-486.

They also said they would do everything possible to continue pressing her legal challenge, including the constitutional arguments that drew the explicit support of Justice Stevens yesterday.

Simon Heller, a lawyer with the Center for Reproductive Law and Policy in New York City who is the lead attorney for Ms. Benten, said the choice about how to have an abortion would be Ms. Benten's to make, with her doctor's advice.

Although Mr. Heller said Ms. Benten had only "a little time" left before it would no longer be medically advisable to take RU-486, he said she might yet be able to go forward with an abortion by that method next week if she could somehow obtain the pill.

The Californian, in an explicit move to test the government import ban, brought a single dose of RU-486 back from London on July 1, only to have it seized -- as she anticipated that it would be -- by customs officials at John F. Kennedy International Airport. She then went to court, claiming that the government acted illegally and unconstitutionally in imposing the total ban on even personal-use imports of RU-486.

A federal judge in Brooklyn ruled Tuesday that the ban had been adopted illegally and in response to political pressure from anti-abortion members of Congress. The judge, Charles P. Sifton, ordered the government to release the dose so that Ms. Benten could have the planned abortion.

A federal appeals court in New York City, however, postponed Judge Sifton's order, and the Supreme Court refused yesterday to reinstate that order.

From the wording of the Supreme Court's opinion, it did not appear that a majority had found it difficult to reach a decision. The action took more than a day, but apparently much of that time was required to reach all of the justices, many of whom are out of town. All nine apparently took part in the final action.

Justice Harry A. Blackmun was the second dissenter, with Justice Stevens. Justice Blackmun did not embrace Justice Stevens' views but simply said the woman should be given access to the dose of RU-486.

The majority was made up of Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia, David H. Souter, Clarence Thomas and Byron R. White.

The constitutional issue that Justice Stevens discussed in his dissenting opinion has been a facet of Ms. Benten's court case from the beginning, but Judge Sifton did not rule on it. The appeals court did not comment on it, either, and Ms. Benten's lawyers had not made that argument to the Supreme Court.

Even so, Justice Stevens took up the question and concluded that the import ban would impose an "undue burden" on Ms. Benten's constitutional right to seek an abortion.

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