Justices Take Up States’ Abortion Curbs : Give No Sign of Heeding Administration Plea to Void ’73 Decision

The Supreme Court, taking up one of the most politically charged issues on its current docket, heard arguments Tuesday over how much authority the states should have to restrict procedures for obtaining abortions.

But, in nearly two hours of questions to lawyers, the justices gave no indication that they were even considering a plea by the Reagan Administration to go beyond the question of state regulations and flatly overturn their controversial 1973 ruling establishing a constitutional right to abortion.

The Administration filed a “friend of the court” brief last summer urging that unusual step. Anti-abortion and “pro-choice” groups, members of Congress and women’s and medical organizations jumped into the fray, filing their own briefs with the justices, heightening the intensity of the debate. But the court later refused to provide extra time for government lawyers to personally argue their case.

May Lack Definitive Rulings

There were also further indications in Tuesday’s hearing that procedural problems that plague the two cases before the court could force the justices to dispose of them later this term without definitive rulings. Many of the questions from the justices reflected concern over those problems.

The court was urged to strike down laws in Pennsylvania and Illinois that imposed an array of procedural restrictions and requirements on doctors performing abortions. The laws, lawyers told the justices, intruded on the principles established in the court’s 12-year-old landmark ruling in Roe vs. Wade.

The Pennsylvania law required that women seeking abortions be informed of the potentially adverse physical and psychological effects and of the availability of assistance for prenatal care and childbirth. Doctors performing abortions were required to file detailed reports with the state and to use procedures in post-viability operations that best protect the fetus, unless they would present a “significantly greater” risk to the life or health of the mother.

Standard for Viable Fetus

The Illinois law required physicians to use the same standard of care for a potentially viable fetus in terminating a pregnancy as they would when a fetus is intended to be born. Doctors were also required to tell patients that certain kinds of birth control devices--such as IUDs--are “abortifacients” that terminate pregnancies after conception rather than preventing conception.

“The Pennsylvania act unconstitutionally infringes on the right of women to make their own decisions about abortion,” said Kathryn Kolbert of Philadelphia, an attorney representing the American College of Obstetricians and Gynecologists.

But lawyers defending the laws countered that the states should be permitted to make sure women are fully informed about abortion and to require abortion procedures that protect an unborn child who could survive outside the womb.

“There is a role for the state to play in the protection of maternal health and fetal life,” Andrew S. Gordon, senior deputy attorney general of Pennsylvania, told the court.

Principles Called Violated

R. Peter Carey, an attorney representing doctors and abortion clinics opposing the Illinois law, said that the state had attempted to “advance its theory of fetal life” and had violated the principles the justices established in Roe vs. Wade and in subsequent rulings reaffirming the 1973 decision.

“This court has consistently recognized a woman’s right to personal autonomy in reproductive matters,” he said. “That constitutional right cannot be vitiated by the state.”

But Dennis J. Horan, a lawyer for Americans United for Life, an anti-abortion group, said that the Illinois requirement on “abortifacients” was a legitimate way of assuring greater awareness about abortion. Americans United for Life represents a doctor supporting the law.

“It places no obstacle whatsoever in the path of a woman to obtain an abortion,” Horan said.

A decision by the justices is expected by next spring.