Supreme Court Scrutinizes Ban on Abortion Counseling

The Supreme Court, in a spirited session highlighted by pointed questions from new member David H. Souter and fellow justices, today scrutinized a federal ban on abortion counseling at government-subsidized family planning clinics.

Regulations barring the staffs of such clinics from discussing abortion with their clients violate free-speech rights, challengers to the regulations argued.

But the Bush Administration defended the ban, saying the federal funding program involves “preventive services” and not abortion.

The court’s newest member, Justice Souter, appeared troubled by Solicitor General Kenneth Starr’s contention that doctors and other family planning clinic staff members can’t recommend abortions as medical treatment--even when women are in imminent danger because of their pregnancies.

“You are telling us the physician cannot perform his usual professional responsibility,” Souter said. “You are telling us the secretary (of Health and Human Services) in effect may preclude professional speech.”

Seven of the court’s nine justices asked questions during the hourlong session. None showed any inclination toward using the case--the only abortion-related dispute currently before the court--to reassess the 1973 Roe vs. Wade decision that legalized abortion.

“This is strictly a First Amendment (free-speech) argument,” Harvard law Prof. Laurence Tribe said for those challenging the regulations.

At stake is the information available to the 5 million low-income women who depend on family planning clinics and similar health care providers. Last year, about 4,000 family planning clinics nationwide received about $140 million in federal assistance.

“The government cannot create a viewpoint-based tilt” in dictating what counseling is allowed at such clinics, Tribe said.

But Starr, the government’s highest-ranking courtroom lawyer, said the regulations issued by the Reagan Administration in 1988 indicate an attitude he described as “let’s not bring abortion and the abortion controversy into the program.”

Justices Sandra Day O’Connor and John Paul Stevens also posed questions that seemed to show skepticism about Starr’s argument.

Justices Byron R. White and Antonin Scalia seemed to show skepticism about some points raised by Tribe in his attack on the regulations.

The 1988 regulations have been held in abeyance virtually everywhere because of the legal challenges.

Under the regulations, a woman who visited a federally funded family planning clinic and asked about abortion would have to be told that the clinic staff “does not consider abortion an appropriate method of family planning.”

Staff members then could offer help in obtaining prenatal care.