Supreme Court rejects plea against anti-abortion law in Miss.

December 08, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court refused again yesterday RTC to be drawn back into the abortion fight and, in the process, appears to have made it harder for clinics and their patients to stop abortion restrictions from going into effect.

Passing up a major test case involving a year-old Mississippi anti-abortion law, the court left intact a federal appeals court ruling that strongly suggests that such laws would have to be enforced first and then challenged.

For years, opponents of new anti-abortion restrictions have gone to court and, in almost every case, have gotten orders to block those restrictions temporarily while their constitutional challenge went ahead. Almost all new laws thus went unenforced for years.

If the approach the Supreme Court allowed in the Mississippi case is now followed elsewhere, however, that strategy may not be widely available.

Instead, challengers to new abortion limits would have to obey new laws while gathering proof from experience -- over several months and perhaps over a few years -- before they could have a chance of persuading a court to strike down the law.

"We will have to let the harm go on while we collect evidence of a constitutional violation, so we can go to court to show the Constitution was violated," said Rachael N. Pine, an abortion-rights lawyer from New York who is handling the Mississippi case. "That is pretty hollow protection."

But an activist organization on the other side of the abortion controversy, the National Right to Life Committee, praised the Supreme Court for having "reaffirmed the principle of a woman's right to know" about abortions before they made "a life or death decision."

In Mississippi, a 1991 law that has been in effect for more than four months requires women to wait 24 hours before having an abortion. It also requires women to be told a day in advance about the risks of the abortion, the age of the fetus and the medical care and financial support that might be available if the pregnancy were carried to term.

The 5th U.S. Circuit Court of Appeals in New Orleans allowed that law to go into effect in August, saying that the law as written satisfied the Supreme Court's new -- and more relaxed -- constitutional standard for abortion laws, spelled out in a decision from Pennsylvania in June.

The Circuit Court refused to let the challenging clinics go back to a lower court to try to show that the law's restrictions put an unconstitutional burden on women's abortion rights. Since the state law was very similar to Pennsylvania restrictions upheld by the Supreme Court in June, the Circuit Court said no new evidence could make that law unconstitutional.

There are only three abortion clinics throughout Mississippi, two located at one end of the state, the third at the other end. Lawyers for the two clinics that took the case on to the Supreme Court argued that, because Mississippi is a rural and poor state, few pregnant women could afford to travel long distances and then stay over while waiting to satisfy the new law.

They argued that, given a chance, they could show that Mississippi was different enough from Pennsylvania that a law similar in content would impose a far greater burden on Mississippi women.

They thus asked the Supreme Court to assure them a chance to make that case now, without waiting to demonstrate the impact after more practical experience.

They said that since enforcement of the Mississippi law began in early August, the number of abortions at the three clinics had dropped by half.

The Supreme Court's refusal to hear the appeal marked the second time in two weeks that the court had refused to hear a new abortion case.

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