High court gives OK to N.D. abortion law Warning issued on new restrictions

April 03, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court gave North Dakota permission yesterday to start enforcing its anti-abortion law, but the action came amid a warning to states not to expect routine permission to carry out their new abortion restrictions.

In a series of recent actions before yesterday, the court had seemed to be signaling that constitutional challenges to abortion laws would have to wait until the laws had been in effect for some time, even if they restricted abortion rights severely.

Four of the nine justices, however, clearly moved away from those indications with their actions in the North Dakota case. Thus, it appeared that women's rights lawyers would need only one more vote -- a vote they may get when a new justice is named this summer -- to be free to pursue challenges to new laws as soon as they are passed by state legislatures.

The court did vote 7-2 to allow the North Dakota law, enacted in April 1991, to be put into effect immediately.

As a result, pregnant women in the state now must wait 24 hours to get an abortion in Fargo, the site of the only clinic in the state performing such operations.

But two of the justices among the seven in the majority, Sandra Day O'Connor and David H. Souter, said in a separate opinion that their votes were not to be understood as down-the-line support for prompt state enforcement of laws that may put an "undue burden" on women's constitutional right to end their pregnancies.

In fact, Justices O'Connor and Souter said the two lower federal courts that have been dealing with the Fargo clinic's case were wrong in failing to probe into the practical effect of the state's law. Two other justices, Harry A. Blackmun and John Paul Stevens, voted to prevent North Dakota from enforcing its law at all, thus indicating that they, too, thought the lower courts had been wrong.

The activity at the Supreme Court yesterday, and the new positions taken by Justices O'Connor and Souter, were focused on very technical details about how and when new state laws may be challenged in federal court.

But in the field of abortion law, those details have taken on special practical significance in determining how free states are to enforce new restrictions.

Justice Byron R. White, who is due to retire at the end of the current term, cast his vote to permit North Dakota to enforce the law.

The majority gave no explanation.

Since President Clinton is expected to name as Justice White's replacement a justice who would vote strongly in favor of abortion rights, there is now the prospect of a five-justice bloc willing to let more constitutional challenges go forward rapidly -- and perhaps to stop new laws that go too far to limit abortion rights.

By the time the court issued its order letting the North Dakota law go into effect, all the women who had been scheduled to have abortions at the clinic this week had had their operations.

The clinic, used by women not only in the area around Fargo but from points across the state and from Canada, performs abortions only two days a week.

The women awaiting abortions yesterday and Thursday obtained the service mainly because Justice Blackmun, in an emergency order Wednesday, had kept the law ineffective while the full court pondered what to do about it.

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