Abortion Ruling Called ‘Flawed’ : Justice Dept. Argues Case Against 1973 Decision

The Supreme Court’s controversial landmark decision in 1973 legalizing abortion is “flawed” and “inherently unworkable” and should be overturned, the Reagan Administration told the court Monday.

The Justice Department, in a “friend of the court” brief filed in pending cases from Pennsylvania and Illinois, argued that the 1973 ruling, known as Roe vs. Wade, has been misapplied to prevent the states from enforcing even minimal restrictions on abortion. “The textual, historical and doctrinal basis of that decision is so far flawed that this court should overrule it and return the law to the condition in which it was before that case was decided,” the department said.

In a strongly worded, 30-page document signed by Acting Solicitor General Charles Fried, the department acknowledged that some persons hold a strong conviction that unimpeded access to abortion protects individual freedoms. But such a conviction is not supported by sound constitutional principles, the brief said.

“It is at best an intuition based in controversial moral and social theories of the good life and of an individual’s situation in society--theories which a large part of the country does not entertain,” the department said.

The filing of the brief sharply escalates the Administration’s fight against legal abortion. Two years ago the Administration joined in an unsuccessful defense of abortion restrictions enacted in Akron, Ohio--but it did not seek outright reversal of the 1973 decision at that time.

President Reagan, who long has opposed abortion except when the mother’s life is in danger, approved Monday’s filing, the White House said.

Restrictions Overturned

In the Pennsylvania and Illinois cases, which do not involve challenges to the basic right to abortion, appeals courts overturned laws imposing a wide range of restrictions on abortions. The Administration asked the court to reinstate the regulations--and throw out the landmark 1973 ruling as well, as the “source of the problem.”

The Illinois law requires doctors performing abortions to use methods likely to save a viable fetus. It makes it a misdemeanor for physicians to fail to tell patients that IUDs and other “abortifacients,” unlike contraceptives, cause fetal death after conception.

The Pennsylvania law requires that women be informed of the possible detrimental physical and psychological effects of abortion and requires that women be provided with pamphlets describing prenatal and childbirth assistance available through public and private agencies.

Arguments Next Term

Both cases are set for argument before the justices in the term that starts in October, with a decision expected early next year.

The Administration said that the two federal appeals courts displayed an “extreme and unseemly hostility” to the states’ legitimate attempts to regulate abortion. While courts generally hesitate to declare laws unconstitutional, these two courts showed a “manifest eagerness” to strike them down, the brief said.

But the root of the problem, the Administration said, is Roe vs. Wade. In that decision, the court said the right to an abortion extended through the first six months of pregnancy, a period during which the fetus was thought not to be “viable”--that is, able to survive outside the womb. The court divided pregnancy into three trimesters: in the first three months, the state could not interfere at all; in the second, states could regulate abortion only to safeguard the woman’s health; in the third, the state could regulate or even ban abortion unless the health of the woman was threatened.

The Administration said that the “viability” standard is “particularly unworkable” as a basis for court rulings because it could change with advances in medical technology. The brief acknowledged the value of stare decisis-- the legal doctrine of adhering to precedent. But where a decision has proven “unsound in principle and unworkable in practice,” reconsideration by the court is warranted, it said.

Groups Welcomed Move

Although spokesmen for anti-abortion groups welcomed the Administration’s brief, they did not predict that the court will overturn the 1973 ruling. They noted that the court, by a vote of 6 to 3, strongly reaffirmed Roe vs. Wade in the 1983 Akron decision.

“We’re pleased it joined in the cases, but we don’t expect--and we don’t think the Justice Department expects--the court to abandon Roe,” said Douglas Johnson, legislative director of the National Right to Life Committee.

Groups supporting the right to abortion voiced dismay. “It’s an outrage the Administration has asked the court to do this,” said Marsha Levick, counsel for the NOW Legal Defense Fund in New York. “It’s stunning that they feel there is any legal justification for it.”