Justice Dept. Sharpens Attack on 1973 Abortion Ruling

The Bush Administration sharply attacked the 1973 Supreme Court Thursday for its ruling giving women a right to an abortion, blaming the high court for having deepened the nation’s divisions over the issue and urging that the matter be returned to the states for a “political resolution.”

“The resolution of the abortion controversy, including any compromise, must come from the legislature. It cannot be imposed by the courts from above,” the Justice Department said in a friend-of-the-court brief issued Thursday.

The Administration’s all-out attack on the Roe vs. Wade ruling comes as the Supreme Court is about to reconsider the abortion question for the first time with a five-member conservative majority. The Roe ruling was reaffirmed on a 5-4 vote in 1986, but since then, liberal Justice Lewis F. Powell Jr. has retired and been replaced by former President Ronald Reagan’s third nominee, Anthony M. Kennedy.

The case before the court (Webster, Missouri attorney general, vs. Reproductive Health Services, 88-605) will be heard in late April, with a ruling likely by July 1.

The Missouri law being reviewed bans the use of public funds, facilities or employees in any way that would assist or encourage abortion. It was struck down as unconstitutional by lower courts, which said that it put unfair obstacles in the path of women seeking an abortion.

In its brief, the Administration called on the high court to use the case to throw out the Roe precedent entirely and not to settle on a scaled-back right to abortion. One of the options posed in past opinions, advanced by Justice Sandra Day O’Connor, suggested that the court could uphold abortion regulations similar to Missouri’s but strike down laws that would make it nearly impossible for women to get abortions.

“On reflection, we believe that any such intermediate standard would inevitably fall prey to the same difficulties that beset the Roe framework,” the Administration brief argues.

As states tried out new laws regulating or restricting abortion, the Supreme Court would again be forced into “arbitrary line drawing” to uphold some and strike down others.

“If such a political resolution of the abortion controversy is ever to become a reality, the court must unequivocally announce its intention to allow the states to act free from the suffocating power of the federal judge, purporting to act in the name of the Constitution,” the brief concludes.

In the past, the Administration said, the court’s action on the issue has only caused the nation harm. “The deep division in American society over the underlying question of abortion . . . has, in substantial measure, been a product of the decision itself,” it said.