Abortions allowed by high court while limits await rulings Decision striking down restrictive S.D. law is upheld in 6-3 vote

April 30, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court acted yesterday to allow women seeking abortions not allowed under new and stricter state laws to end their pregnancies while those laws await court tests of their constitutionality.

The court did not rule directly on a dispute over women's abortion rights, although it did agree to leave intact a lower court ruling striking down a South Dakota law restricting teen-agers' rights.

The 6-3 vote in that case was the clearest indication yet that new restrictions on women's abortion rights probably can't be enforced until and unless they withstand a constitutional challenge in court.

At issue was a state law requiring that one parent of a minor be notified before she could have an abortion -- an issue the court has faced several times, but one it has not yet clarified.

The justices' vote was another indication that a majority remains unwilling to reopen the basic question of state power to restrict abortion rights.

The majority appears to be prepared to rely on lower courts to apply the justices' last ruling spelling out women's right to abortion -- a decision in a Pennsylvania case four years ago.

In the South Dakota case, a federal appeals court provided a broad interpretation of the 4-year-old decision and its impact on attempts to stop anti-abortion laws before they are enforced.

What yesterday's action in the Supreme Court is expected to mean in practice is that, once an anti-abortion law is passed, it will face an immediate court test and could be blocked until the case is over -- months and perhaps years later. If the law is struck down, it would never have any effect.

The alternative to that -- and this is more common for new laws -- would be to let the restrictions go into effect, postponing court challenges until after the laws have been applied long enough to gauge their impact, a process that could be lengthy.

Under that alternative, women and clinics would have to obey new anti-abortion laws while trying to gather evidence from everyday experience to convince a court later that the laws should be struck down. In the meantime, many women would have had to pass up abortions.

The appeals court in the South Dakota case said that women and clinics may go to court immediately to attack a new law.

So long as the challengers can make a case that the law probably will interfere, in a significant number of cases, with abortion rights, the challenge may proceed, the lower court indicated.

The Supreme Court voted to leave that ruling intact. Among the justices in the majority were the three who joined forces to write the court's 1992 ruling on abortion rights: Justices Anthony M. Kennedy, Sandra Day O'Connor and David H. Souter.

Justice Antonin Scalia, writing for the three dissenters, suggested that the court was avoiding its duty to clear up a conflict among lower courts about the state of abortion rights.

The dispute over when challengers could go to court, Justice Scalia said, "cries out for our review" in the South Dakota case.

The South Dakota law at issue in the case was passed in 1993, and required that one parent be notified 48 hours before a minor daughter could have an abortion.

As written, the law would not give a young woman who wanted an abortion any option to bypass her parents and get permission from a judge for an abortion.

The federal appeals court, in striking down the law, said that in a large fraction of cases of young pregnant women, the absence of a bypass to a judge would interfere with the right to abortion.

The appeals court conceded that the challengers could not show that the law would always interfere with abortion rights, but it said the challengers did not have to prove that in order to test the law.

Pub Date: 4/30/96

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