Strengthening of abortion rights urged Miss. case could be next high court test

October 03, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- In a bluntly worded new appeal, women's-rights lawyers urged the Supreme Court yesterday to put additional vigor into what still remains of the constitutional right to abortion.

The appeal for two Mississippi abortion clinics and three doctors appears to have a fairly strong chance of becoming the next test case for the court on this heated controversy, allowing the justices to spell out further what abortion rights now mean in the wake of a 5-4 decision June 29.

The decision at the end of the court's last term declared that women continue to have a right to seek abortions but that it is narrower than it has been since Roe vs. Wade was decided in 1973.

Laws, the court majority said, will be struck down if they put an "undue burden" on the exercise of the abortion right.

In what amounted to a lawyer's dare, yesterday's plea asked the court to ensure that the June decision "is not merely a mirage of constitutional protection."

At issue in the new case is a 1991 Mississippi law that requires women seeking abortions to wait 24 hours -- after they are given a state-prescribed lecture on the age of the fetus they are carrying, the medical risks of abortion and the benefits they could get if they carried the pregnancy to term.

Mississippi officials started enforcing that law Aug. 9. Since then, there has been a 50 percent drop in the number of women seeking abortions, according to sworn statements in lower courts. There are only three clinics that perform abortions in Mississippi; 80 of the state's 82 counties have no clinics.

Lawyers for the clinics and doctors who practice in them want a chance to try to show, in court, that the actual conditions in the state make it much harder for women to get abortions as a result of the new law.

But the federal appeals court in New Orleans, in one of the first decisions reacting to the Supreme Court's June decision, refused in August to let abortion-rights lawyers offer specific factual proof on whether the 1991 state law imposes an "undue burden" on abortion rights.

The appeals court threw out the lawsuit challenging the constitutionality of the Mississippi law. It said that no amount of evidence would change its view that the law passes the constitutional test laid down by the Supreme Court's June decision.

In the new appeal, the lawyers for the Mississippi clinics and doctors note that the Supreme Court, while upholding most parts of two new Pennsylvania anti-abortion laws, did indicate that lawyers were free to return to lower courts to try to bring out facts to nullify some of the restrictions.

If that option is not left open, the lawyers contended in the new appeal, Mississippi women can attempt to challenge the new state law only if their doctors are willing to risk a criminal prosecution under the law.

The Supreme Court might not take action on the new appeal until early next year.

The justices already have before them a new test case on the constitutionality of a nearly total ban on abortions.

Many legal experts, however, are predicting that the court will simply bypass that case and thus leave intact a lower court ruling striking down the nearly complete ban adopted in 1990 in the Territory of Guam.

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