Justice Souter frees Pa. to start enforcing its abortion restrictions

February 08, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Pennsylvania got clear permission from Supreme Court Justice David H. Souter late last night to start enforcing its anti-abortion laws, on the books

since 1988 and 1989 but never put into effect.

In a six-page opinion issued about an hour before midnight, Mr. Souter said he thought the state laws might put a burden on women's right to abortion, but he said a federal appeals court in Philadelphia was right in refusing earlier this month to postpone the laws any further.

Enforcement of the law, to begin within a few days, is expected to affect about 50,000 women a year in Pennsylvania. That is the estimated number who seek abortions every year there. The Pennsylvania law thus is likely to apply to more women than any other anti-abortion law that the Supreme Court has ever allowed to go into effect.

All but one section of the Pennsylvania laws had been upheld by a 5-4 majority in the Supreme Court in June 1992, but five clinics and a doctor in the state have continued to pursue new constitutional challenges to the restrictions.

They asked Justice Souter yesterday to block the laws until after the full Supreme Court could act later this spring on their new challenge. Mr. Souter, however, said that he doubted his colleagues would agree to review the new dispute, and thus the state was free to put its laws into effect.

Pennsylvania officials have been getting ready since Friday to implement the laws' key requirements: women seeking an abortion must wait 24 hours and listen to a state-required lecture by their doctor on the risks of abortion, and pregnant teen-agers living with their parents must get the consent of one parent or of a state judge before having an abortion.

The federal appeals court on Jan. 14 lifted an order against enforcement of the laws, and on Friday refused a last-minute plea by the clinics for one more postponement.

After that, the last chance the clinics had was with Justice Souter, who handles emergency pleas from the judicial region that includes Pennsylvania.

Mr. Souter was one of the three justices who together wrote the key opinion in the Pennsylvania case in 1992.

That opinion partly reaffirmed a woman's constitutional right to abortion, but relaxed somewhat the constitutional standard that state anti-abortion laws would have to satisfy.

Using that standard, the court's majority -- the three who wrote the key opinion, plus two others -- struck down one part of the Pennsylvania law. That part required women to tell their husbands before they could get an abortion.

But, by a different combination of five justices, the court upheld all the remaining parts of the Pennsylvania law, including the waiting period, the required lecture by the doctor, and the limit on teen-agers' abortion rights.

Since that 1992 ruling, a federal judge in Philadelphia and the appeals court there have been in dispute over what to do next with the Pennsylvania restrictions.

The judge wanted to bar their enforcement until the clinics could offer new evidence that the restrictions go so far that they still should be struck down.

The appeals court, however, said the Supreme Court by upholding most of the law had left lower courts nothing to do but step aside and let Pennsylvania begin enforcing the law. That is the result that Justice Souter said yesterday his colleagues probably would not disturb when they consider the clinics' new appeal several weeks from now.

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