States can't call abortion a crime, high court says 6-3 decision lets stand overturning of tough Guam law

December 01, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The nation's toughest anti-abortion law collapsed yesterday as the Supreme Court sent a clear message that states should not try to make abortion a crime.

The court refused to take any action to save the territory of Guam's nearly total ban on abortion, a criminal law that goes further to forbid abortions than any U.S. law on the books.

Although three justices who believe there should be no constitutional right to abortion voted to consider Guam's appeal, it takes the votes of four justices to grant review of any case. A fourth justice who holds that same view, Clarence Thomas, did not join in the dissent; he did not say why.

The Guam law allowed pregnant women to be prosecuted for the crime of abortion, and it made no exceptions that would allow abortion to end pregnancies resulting from rape or incest.

Moreover, it made abortion a crime throughout pregnancy, with only two narrow exceptions: when a pregnancy was tubal in nature, and when two doctors, practicing independently of each other, agreed that abortion would probably be necessary to save a woman's life or spare her "grave" harm to her health.

The Supreme Court's action on the law was not explained, but the meaning was clear: bans on abortion almost certainly cannot pass constitutional muster.

The court had been pondering the Guam case for well over a month, then acted in the briefest way to take the case off of its docket without a formal ruling. The effect was to leave intact a lower court's April decision nullifying the 2-year-old Guam law.

The Guam case was the first to reach the Supreme Court since the justices' 5-4 ruling late in June that partly reaffirmed a woman's right to abortion even while narrowing that right considerably.

Despite the June decision, Guam's Gov. Joseph F. Ada asked the Supreme Court to let him enforce the Guam ban, at least in some circumstances. The lower court had barred enforcement in any situation, but Governor Ada contended that the Supreme Court did not mean to go that far in its June ruling.

Siding with Governor Ada, Justice Antonin Scalia -- the court's most vocal critic of abortion rights -- argued in a dissenting opinion that the court should send the case back to the lower court to see if it could ban abortions when the fetus had reached the stage where it could live outside the mother's body.

The Scalia dissent was joined by Chief Justice William H. Rehnquist and Justice Byron R. White -- the two justices who had dissented from the court's original abortion rights ruling, in Roe v. Wade, nearly 20 years ago. Mr. Scalia, Mr. Rehnquist and Mr. White were dissenters -- along with Mr. Thomas -- in June's decision providing some continuing constitutional protection for abortion rights.

The 9th U.S. Circuit Court of Appeals struck down the Guam law as a clear violation of Roe vs. Wade. Its ruling had come before the Supreme Court partly modified the Roe decision.

Another criminal anti-abortion law that goes almost as far as Guam's -- a year-old law in Louisiana -- also may not survive yesterday's action. Louisiana Attorney General Richard P. Ieyoub is expected to decide today whether to abandon a defense of his state's law, found unconstitutional by a federal appeals court in September.

Abortion-rights groups praised the court for its action against the Guam law, and anti-abortion groups denounced it. But both sides appeared to be looking beyond the Guam case -- and beyond laws that criminalize abortion -- to fights over laws that seek to restrict abortion by regulation.

Many state legislatures are expected to take up tough anti-abortion regulatory laws next year in an attempt to exploit what observers on both sides of the abortion controversy see as maneuvering room left by the Supreme Court in June.

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