Conservative Court Has Chance to Alter Pro-Choice Ruling : Case Could Lead to Curbs on Abortion

Times Staff Writer

The Supreme Court now has a case on its docket asking the justices to reconsider their 1973 ruling that gave women a constitutional right to end a pregnancy and, instead, give the states authority to regulate or severely limit abortions.

Lawyers for both abortion and anti-abortion groups say they expect the case to become the major test of whether the Supreme Court, with its new conservative majority, is ready to change directions on the abortion issue.

In the case, appealed to the court earlier this month, attorneys for the state of Missouri are seeking to reinstate a 1986 state law that declared that human life “begins at conception.”

The measure barred any doctors, nurses or institutions receiving public funds from performing abortions unless the mother’s life was in danger. It also prohibited them from even “encouraging or counseling” a woman to end a pregnancy. Exemptions were allowed only for clinics operating solely with private funds.


Laws Struck Down

In its landmark 1973 Roe vs. Wade ruling, the high court struck down laws prohibiting abortions during the first trimester of pregnancy and, since then, it has invalidated virtually all state and local measures attempting to regulate abortions. In July, the U.S. 8th Circuit Court of Appeals struck down the Missouri law before it could go into effect.

However, last month Supreme Court Justice Harry A. Blackmun, author of the Roe vs. Wade opinion, told a law school audience “there is a very distinct possibility” that the high court will change its stance during this court term.

So far, the justices have not agreed to hear an abortion case. But the current docket has three such cases for possible consideration, of which the Missouri appeal (Webster vs. Reproductive Health Services, 88-605) is considered the likeliest test of the issue. The high court is expected to decide by December whether to hear it.


“We think there’s a good chance the court will move on the abortion issue this term,” said Michael L. Boicourt, Missouri’s assistant attorney general. “We think they want an abortion case badly because of the speculation that Justice (Byron R.) White may retire at the end of the term.”

Since the 1973 ruling, decided on a 7-2 vote, the pro-choice majority on the high court apparently has diminished. The two dissenters in that case, White and Justice William H. Rehnquist, have been joined on the panel by three President Reagan appointees, Justices Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy.

None has stated that he or she would overrule the Roe decision, but analysts believe that all are willing to give states more power to regulate or restrict abortion.

Also, White, 71, despite rumors that he is considering retirement, is in good health and an increasingly powerful figure on the more conservative court.

In striking down the Missouri law, the federal appeals court said the measure set forth an “impermissible theory of life” and used this notion to unduly infringe on a woman’s right to end her pregnancy.

Boicourt, the state’s lawyer, said in an interview that he believes the high court is ready to strike a new balance between a woman’s right to abortion and the state’s authority to protect the life of the unborn.

He said he doubts that the high court would “reverse Roe entirely” and allow states to broadly forbid abortion. But he said he believes there is a good chance it would permit more state-imposed restrictions and regulation.

“That’s the message we need to get,” said Samuel Lee, legislative director of Missouri Citizens for Life. It would “send a signal that more restrictive abortion laws are OK.”


Right-to-life advocates said they believe that, if the high court gives the go-ahead, legislatures in Illinois, Pennsylvania and Minnesota, as well as Missouri, would move quickly to restrict abortions.

The St. Louis attorney who won the lower court rulings against the Missouri law said, “I think it’s only a question of when, not if,” the high court will choose to hear the abortion test case.

“The major practical effect of this law would be to have doctors commit gross malpractice” because they could not counsel women to have abortions when they considered it appropriate, said Frank Susman, who represented several doctors and nurses as well as the American Civil Liberties Union in the case. He described the law’s language declaring that life begins at conception as a “PR stunt” by the anti-abortion faction.

The other two abortion cases on the high court docket are somewhat narrower challenges, appealed from courts in Indiana and Michigan. They involve prospective fathers who are seeking to prevent their estranged wives from having abortions.

There is a chance that, even if the court chooses to hear one or more of the cases, hearings could not be scheduled before the end of the current term in June. If no action on a hearing is taken by early December, there could be no hearings until next fall.