Supreme Court studies Guam case

ABORTION RULING EXPECTED SOON

November 28, 1992|By Lyle Denniston | Lyle Denniston,WASHINGTON BUREAU

WASHINGTON - States that want to go far toward outlawin abortion by making it a crime in almost all situations are likely to find out soon - perhaps as early as Monday - whether the Supreme Court will permit that.

This was an issue that abortion rights activists have felt sure the court had settled in its latest abortion ruling, last June 29, when it partly reaffirmed Roe vs. Wade even as it reduced the scope of the constitutional right to end pregnancies.

But the court seems ready to demonstrate anew, however, that on abortion, nothing is simple and not much is yet settled for sure.

Since late October, the justices have been digging deeply into the background of a case from the territory of Guam, where the legislature went further than any American state has gone to forbid abortion.

The court has put in more effort on the Guam case so far than it ordinarily does when any case first reaches it, and observers on all sides of the abortion controversy have been speculating for weeks on the meaning of that effort.

Although that case was ready for the court to act upon on opening day of its new term in early October, it has been put over for further study repeatedly since then, without any public explanation.

"All of the obvious reasons [for that delay] are now gone," said Clark Forsyth, a lawyer for the Chicago-based anti-abortion group, Americans United for Life. He and others had thought the justices might simply be sitting on the case until after the presidential election, so as not to be seen as contributing to political agitation on the abortion issue.

Others had suggested that the court was simply going to look the other way, leaving the Guam case unreviewed, but that some or all of the four justices who want to do away with abortion rights as a constitutional matter would not go along with that.

But last month, however, the court quietly told the lower court that had struck down the Guam law last April - the 9th U.S. Circuit Court of Appeals - to send to the justices the complete background on the case. That, according to attorney Forsyth and others, is usually an indication that the court is getting ready to issue some kind of clear-cut and probably quite significant ruling.

That would be a switch from the expectation widely shared after the court last ruled on abortion in a major case from Pennsylvania at the end of its last term. The court's main opinion in that case appeared to have made it clear that states would not be allowed to "prohibit" abortion - as the Guam law comes close to doing - and that states could not make access to abortions so difficult as to impose an "undue burden" on pregnant women's rights.

The court, said in June that in the time before a fetus reaches the stage where it could live outside the woman's body (that is, at about 23 weeks), the state's interests in protecting the fetus "are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."

Guam's appeal, seeking to revive the territorial anti-abortion law voided by the appeals court, had arrived at the court before the Pennsylvania decision emerged. But, after that ruling came out, observers generally expected that the Guam law - and similar laws criminalizing abortion - now had no chance before the court, and that the court thus would not even bother to examine such laws itself.

The court, by poring over the Guam case so closely and by taking so long to decide what to do with it, has confounded those expectations, and led to a new round of speculation here and elsewhere that the court majority is preparing to give legislatures some added guidance on what the Pennsylvania ruling may mean for future laws.

The Guam case is, in fact, the first since the Roe case itself in which the court has been asked to rule upon a law treating abortion as a crime.

The Guam law allows for pregnant women themselves to be prosecuted for the crime of abortion, and it makes no exceptions that would allow an abortion when a pregnancy resulted from rape or incest. Moreover, the law makes abortion a crime throughout pregnancy, with only the narrowest of exceptions.

While the Supreme Court still has the option of simply passing up the Guam case, that seems less and less likely as time passes and as the court's study of that case deepens.

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