Souter's Pa. abortion ruling does not impede challenges in other states

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

WASHINGTON -- After more than five years of waiting, Pennsylvania gained the authority last night to begin enforcing its anti-abortion laws, but other states with similar laws may not benefit from the Supreme Court order that cleared the way for Pennsylvania.

Supreme Court Justice David H. Souter, in a six-page opinion issued shortly before 11 p.m., gave Pennsylvania permission to put into effect in a matter of days abortion limits that it had adopted in 1988 and 1989.

But, Justice Souter made clear, his action was based solely on the special case of the Pennsylvania law. Moreover, he stressed that abortion rights forces "are free to challenge similar restrictions in other jurisdictions."

That part of the ruling was interpreted by Kathryn Kolbert, a Philadelphia lawyer and abortion rights advocate, as a clear signal that constitutional challenges elsewhere will not be scuttled just because they are aimed at the same kind of laws that Pennsylvania can now implement. Some federal courts had concluded that the Pennsylvania case settled the constitutionality, for all states, of the kinds of restrictions drafted in Pennsylvania.

For Pennsylvania, Ms. Kolbert said last night, Justice Souter's order means "that is the end of this round." But she said "I am pleased with this opinion," because it allowed for "many other rounds" against other states' laws seeking to limit abortion rights.

Under the Pennsylvania law, 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.

Justice Souter noted last night that the Supreme Court -- in a major opinion in 1992 that he helped write -- had upheld those specific restrictions in the Pennsylvania laws. He said that a federal appeals court in Philadelphia was correct in its conclusion last month that nothing was left for lower courts to do in the wake of the justices' 1992 decision but to let the Pennsylvania laws be implemented.

The justice speculated that his colleagues would not be willing to second-guess the appeals court on that point, so he said he would not block the Pennsylvania restrictions further. While the laws were written by the state legislature more than five years ago, they have never been applied because court orders had been blocking them from the beginning.

State officials have said they are not quite ready to begin enforcing all parts of those laws immediately, but that they do expect to have all the paperwork ready to do so in a matter of days. Those laws are expected to have a wider impact than any other abortion restrictions the Supreme Court has ever allowed to be implemented. Some 50,000 Pennsylvania women each year may be affected, according to clinics' estimates.

Some 90 clinics and other medical facilities in Pennsylvania will have to obey the 1988 and 1989 laws.

All but one section of the Pennsylvania laws had been upheld by a 5-4 majority in the Supreme Court in its June 1992 ruling, but five clinics and a doctor in the state have continued to pursue a new round of 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 the new challenge. Mr. Souter took all day to ponder that plea, but denied it with an opinion that, at six pages, was unusual in length for a ruling dealing primarily with a procedural issue.

Mr. Souter handled the plea because he has authority to deal with emergency procedural disputes arising in the judicial region that includes Pennsylvania.

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.

In 1992, he, along with Justices Anthony M. Kennedy and Sandra Day O'Connor, wrote the now-famous ruling in the Pennsylvania case that was the court's most important abortion decision since the first one in 1973: Roe vs. Wade. The Pennsylvania decision 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 laws had left lower courts nothing to do but step aside.

Actual enforcement must await one further order from the Philadelphia judge, and that was expected to be issued promptly in the wake of Justice Souter's action.

Even though the laws can be enforced, abortion clinics remain free to file an entirely new lawsuit against those laws, once they have gathered enough evidence to challenge the law as it actually works in practice. Both the Supreme Court ruling in 1992 and the appeals court's follow-up ruling last month left open that option. The laws have been upheld so far only as they were originally written, not as they might work in everyday enforcement.

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