As New Hampshire’s attorney general in 1976, Supreme Court nominee David H. Souter submitted a brief to a federal appeals court urging that the state not be required to pay for abortions because many taxpayers find it “morally offensive . . . to finance the killing of unborn children.”
The 14-year-old legal brief was viewed suspiciously by abortion rights advocates. But it is unclear how much the brief reflects the personal opinion of Souter since he did not write it and since the attorney general is often called upon to advocate policy decisions determined by the governor.
The language of the state brief “suggests a clear sympathy with the anti-abortion viewpoint,” said officials of People for the American Way, the liberal advocacy group that turned up the legal documents among federal court records.
But abortion foes argued that the brief reveals little, other than the state’s position on the abortion-funding issue.
“I don’t think you can infer anything at all from this about Souter,” said Douglas Johnson, legislative director of the National Right to Life Committee. “Judge Souter probably never even saw this document.”
Johnson added, however, that his group is “fairly comfortable with (Souter’s) overall approach to the law,” and believes that he will vote to overturn Roe vs. Wade, the 1973 ruling that made abortion legal in the nation.
But while the brief did not offer clear evidence of Souter’s stance, it did show that he brushed up against the most divisive issue before the Supreme Court and the nation. In the week since Bush’s surprise selection of the 50-year-old New Hampshire jurist, commentators have called him a “blank slate” and a “stealth candidate” because his views on the nation’s most bitter legal controversies are unknown.
Abortion rights advocates said that the brief gives senators a reason to inquire further.
Referring to abortion as “the killing of unborn children” is a phrase “commonly used by anti-choice extremists,” said Kate Michelman, executive director of the National Abortion Rights Action League. This “intensifies the need for Senate Judiciary Committee members to determine Judge Souter’s stance on fundamental constitutional principles that are of critical importance to Americans,” she added.
Under the Medicaid program, states pay for “necessary medical care” for needy persons, with the federal government sharing the cost. Two years after the Roe ruling, the New Hampshire department of welfare, at the direction of Gov. Meldrim Thomson, issued a regulation saying that the state would not pay for abortions except when they are “medically necessary to preserve the life or health of the mother.”
Lawyers for several poor and pregnant women challenged the regulation in federal court as a violation of their constitutional “right to abortion.” Warren B. Rudman, the state’s attorney general at the time, defended the regulation but a federal judge ruled in favor of the women.
Before the ruling could be appealed, Rudman left office and his top aide, Souter, succeeded him.
On March 10, 1976, the state attorney general’s office filed an appeal with a three-judge panel in Boston.
“Many thousands of New Hampshire residents find the use of tax revenues to finance the killing of unborn children morally repugnant,” the brief argued. “While the citizens of a state may not act to prohibit a woman from aborting, they are free . . . to decline to contribute their tax dollars to support such an activity.”
The brief bears the name of David H. Souter, attorney general, but it was written and signed by Richard V. Wiebusch, assistant attorney general.
“I don’t recall talking with David about this at all. I’m confident he did not look at the brief before it was filed,” said Wiebusch, who is now in private practice in Manchester, N.H.
He said that briefs were routinely prepared and filed without scrutiny or approval by the attorney general. “It may seem hard to believe but that was the work of one lawyer who sat down in a library and wrote it on his own,” Wiebusch said. “I can assure all that stuff is mine.”
Though a longtime friend and admirer of Souter’s, Wiebusch said that he has no idea of the judge’s view on abortion or Roe vs. Wade. He refused to reveal his own views.
But while Souter may not have examined the brief, he was well aware of the abortion-funding dispute. In an April 4, 1976, editorial, the Manchester Union Leader said that “Atty. Gen. David Souter told us” he is contesting the judge’s order requiring the state to pay for abortions for the poor.
Souter was heartened, the editorial said, because the U.S. Justice Department was backing the state. The editorial continued by saying that Souter quoted then U.S. Solicitor Gen. Robert H. Bork: “The fact that a woman has a qualified right to abortion does not imply a correlative constitutional right to free treatment.”
The Supreme Court in 1977 voted to allow states to deny state-funded abortions. On a 6-3 vote, the high court in the case of Maher vs. Roe said that, while the government may not block a woman from choosing abortion, it has no obligation to pay for the procedure.
Based on this high court ruling, the appeals court in Boston overturned the judge’s order and reinstated New Hampshire’s restriction on abortion funding.