La. plans to go to high court in effort to revive its strict anti-abortion law

December 02, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Louisiana officials, feeling political pressure at home and daring the legal odds here, decided yesterday to try to get the Supreme Court to stage a new retreat from abortion rights.

Just a day after the court turned down a plea to reinstate a strict anti-abortion law in the territory of Guam criminalizing most abortions, Louisiana attorney general Richard P. Ieyoub said he would ask the court this month to revive a very similar law adopted by his state.

Under the Louisiana law, abortion is a crime in all cases except to save the woman's life or in limited circumstances to end a pregnancy that resulted from rape or incest. Women who had abortions could not be prosecuted, but doctors convicted of performing abortions could be sentenced to prison for one to ten years "at hard labor" and fined as much as $10,000.

Mr. Ieyoub's decision assured that fundamental challenges to abortion rights will continue to be raised before a court that had labored last spring to write new constitutional guidelines in hopes of getting "the contending sides of a national controversy to end their national division," as the majority had put it then.

Although the court is likely to go on deciding cases that test the outer limits of state power to regulate abortions, its refusal to consider the Guam law -- the nation's most restrictive -- led many observers to conclude that sweeping bans on abortion would not even get a hearing before the justices.

The Louisiana maneuver thus was clearly a surprise -- and more so because Mr. Ieyoub himself had said in September that a refusal by the court to hear the Guam case "could sound the death knell" for similar abortion bans, including Louisiana's.

Yesterday, however, the state's top legal officer said that Louisiana "has a legally viable and reasonable chance" to get the Supreme Court to review a state law that was struck down by a federal court in September -- the first decision nullifying a state abortion law under the guidelines laid down by the Supreme Court in June.

"The elected representatives of the people [of Louisiana] feel very strongly about maintaining this statute," Mr. Ieyoub said in a statement issued in Baton Rouge after overnight discussions with other state lawyers. He noted that the Legislature passed the tough new law last year by a large margin, then overrode the governor's veto to enact the measure.

The state attorney general said he thought Louisiana's law had a chance before the court, even in the wake of the action against the Guam law, because the Louisiana statute was adopted by a state, not a territory.

The Guam law would have allowed women to be prosecuted for having abortions and made no allowance for abortion in cases of rape or incest.

Mr. Ieyoub also read encouraging signs in the fact that three justices -- one short of the minimum needed -- voted to review the Guam law and wrote a formal dissent to protest when the court declined to hear the case.

Mr. Ieyoub also noted that the court had taken weeks to make up its mind about the Guam case.

If the state has a chance of getting its law before the court, he said, he had "a legal application" to test that chance.

Kathryn Kolbert, a prominent abortion rights lawyer and a leader of the New York-based Center for Reproductive Law and Policy, said Louisiana "is beating a dead horse. There's not a prayer of a chance the court will take this case."

She and another abortion rights activist, Kate Michelman, president of the National Abortion Rights Action League, each commented that the Louisiana move shows the commitment of anti-abortion forces to press their agenda in the courts as well as before legislatures.

Ms. Michelman called it "a powerful warning."

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