Court Won’t Let Husband Block Abortion

Despite speculation that the Supreme Court is ready to reconsider its abortion rulings, the justices Monday refused to give a husband the right to block his wife’s decision to have an abortion.

The high court action cuts off a novel line of attack by anti-abortion lawyers who contended that prospective fathers had rights equal to mothers in deciding the fate of their “unborn child.”

Without comment or dissent, the justices turned down the appeal of a 23-year-old Indiana man who sought to challenge his estranged wife’s decision to end her pregnancy.

Since March, 16 men in nine states have filed similar legal challenges, lawyers for the National Right to Life Committee said. Several state judges have issued temporary orders blocking the woman’s abortion, but the appellate courts so far have quickly overturned those orders and ruled that the abortion decision was up to the women in those cases.

The Supreme Court’s action Monday, though not a ruling, suggests that the justices see little merit in the argument put forth by the men.

But attorneys were quick to note that the dismissal says nothing about whether the more conservative court is ready to rewrite its 1973 Roe vs. Wade ruling, which made abortion legal. Speculation about such action by the court arose last week when the Reagan Administration filed a friend-of-the-court brief urging the justices to hear an appeal of a Missouri abortion law and reconsider the Roe vs. Wade decision.

Would Bar Public Funds

Among other things, the Missouri law would forbid the use of any public funds or public hospitals to “encourage” or “facilitate” abortions. The justices are expected to announce in January whether they will hear the Missouri case.

The Indiana case arose in June when Erin Conn learned that his 19-year-old wife, Jennifer, planned to abort a child they had conceived. The couple, who had a 5-month-old daughter, had separated and planned to divorce.

The husband filed a suit in a Shelby County, Ind., court seeking an injunction to stop her abortion. A state judge, treating the matter as akin to a divorce dispute over the custody of children, issued an order that for seven weeks blocked the abortion.

An Indiana appellate court finally lifted the injunction, citing the Supreme Court rulings in 1973 and 1976, which said the abortion decision is the woman’s alone.

“The obvious fact is that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail,” the state appeals court said. “Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy . . . the balance weighs in her favor.”

The Indiana Supreme Court upheld that conclusion on a 4-1 vote.

James Bopp Jr., a Terre Haute attorney and general counsel for the National Right to Life Committee, appealed Conn’s case (Conn vs. Conn, 88-347) to the Supreme Court, arguing that a woman’s right to get an abortion “is not absolute” and that prospective fathers have a right to protect their unborn children.

Bopp said Monday that he was disappointed.

Dawn Johnsen, a lawyer for the National Abortions Rights Action League, filed a brief on behalf of Jennifer Conn, urging the court to reject her husband’s appeal.

“It is up to Mr. Conn, not lower-court judges, to find a woman who will have a child with him,” her brief stated.