Abortion Issue Argued Before Supreme Court

With the Supreme Court seemingly poised to back away from its landmark 1973 Roe vs. Wade abortion ruling, the Bush Administration’s top courtroom lawyer urged the justices Wednesday to restore to state officials the power “to protect the unborn at all stages” of a woman’s pregnancy.

“The state does have a compelling interest in the protection of the potential life, in fetal life,” U.S. Solicitor General Kenneth W. Starr told the justices, “and that interest runs throughout pregnancy.”

But an abortion rights attorney demanded that the government be denied the power to compel a woman to continue an unwanted pregnancy.

“In the same way that it would be unacceptable for government to force a man or woman to donate bone marrow, or to compel the contribution of a kidney to another . . . our Constitution protects women against forced pregnancy,” said Kathryn Kolbert, an American Civil Liberties Union lawyer.

The dramatic arguments came over a 1989 Pennsylvania law that requires pregnant women to notify their doctors and their husbands and then wait 24 hours before an abortion is performed.

The law under consideration does not prohibit abortion. But the ACLU and the Bush Administration said the Pennsylvania case demands that the high court clarify the legal standard for judging abortion restrictions.

Wednesday’s arguments came against a backdrop of impending national elections and intense national struggle over the legality and morality of abortion.

About 250 activists and onlookers gathered outside the court on the gray, drizzly morning to recite slogans and trade familiar charges. Carrying signs saying, “Women have no friend in Pennsylvania,” one group chanted: “Keep abortion legal.” Nearby, three people knelt on the wet pavement in front of a 12-foot cross, tears streaming down their faces.

Inside, the justices engaged in a series of sharp exchanges, alternately scolding Kolbert for straying from the case at hand and chiding Starr for refusing to admit that his position would allow a “total prohibition” of abortion.

The Bush Administration has not wavered from its view that abortion is wrong and should be outlawed.

Last week, the National Right to Life Committee praised Starr’s brief in the Pennsylvania case as “the strongest attack on Roe vs. Wade ever presented to the court by the federal government.”

In his 10-minute argument Wednesday and in a 29-page brief filed with the court two weeks ago, the Administration lawyer asked the court majority to disavow earlier high court declarations that pregnant women have a “fundamental right” to choose abortion.

Instead, Starr said, the high court should give state lawmakers the authority to adopt any rational measure that would protect “the unborn,” including a ban that would make elective abortions a crime.

That legal framework, if adopted by the court majority this year, would effectively overrule Roe vs. Wade and allow courts to uphold laws forbidding nearly all abortions.

Meanwhile, Democratic front-runner Bill Clinton reaffirmed his support for the right to abortion and attacked President Bush’s stand on the issue.

“George Bush wants to move Roe vs. Wade from the law books to the history books,” the Arkansas governor said in a statement from Little Rock. “I believe in and will protect the right to privacy, the right to be left alone by the government, including a woman’s right to choose,” he said.

In comments to reporters, Clinton said he would like to see abortions “safe, legal and rare.”

On Friday, the nine justices will gather behind closed doors to vote on the Pennsylvania case.

As usual, the justices gave no clear signal during the arguments as to how they will rule. However, attorneys on both sides predicted that the Pennsylvania law will be upheld. More important will be the legal rationale.

If the majority indeed votes to uphold the law, Chief Justice William H. Rehnquist will then assign one justice--perhaps himself--to write the court opinion. The decision and the opinions are likely to be announced in the final days of June, before the court adjourns for the summer.

Under Rehnquist, the court generally upholds state laws. In a Missouri case called Webster vs. Reproductive Health Services in 1989, five justices in three separate opinions indicated that they would permit the states to regulate abortion.

In the Missouri case, the justices upheld on a 5-4 vote a law that prohibited elective abortions in public hospitals and required doctors to test the viability of a fetus that appeared to be at least 20 weeks old.

It is not yet clear, however, whether a state has the power to outlaw most abortions. Last year, lawmakers in Utah and Louisiana, as well as in the territory of Guam, enacted new measures making most abortions a crime.

Those measures are under challenge in the federal courts--where Guam’s law already has been overturned--and the outcome likely will depend on the legal rationale adopted in the Pennsylvania case (Planned Parenthood of Southeastern Pennsylvania vs. Casey, 91-744).

If the court follows the approach suggested by the Bush Administration, its opinion will tell judges to uphold state laws designed to protect “fetal life.”

However, at least two members of the court--Justices Anthony M. Kennedy and Sandra Day O’Connor--said Wednesday that they did not see the Pennsylvania case as requiring an all-or-nothing ruling on the right to abortion.

The court could issue an opinion in June that merely affirms the Pennsylvania regulations and takes no position on whether states can go further to ban abortion.

At one point in the argument, Kennedy suggested that the court reconsider its abortion doctrine “on a case-by-case basis.” He chided Kolbert for not focusing on the details of the Pennsylvania law.

“I am suggesting that our sustaining these statutory provisions does not necessarily undercut all of the holding of Roe vs. Wade,” Kennedy said.

His comments cast some doubt on whether he would join a move to overturn Roe vs. Wade. Most legal analysts have counted Kennedy, an appointee of former President Ronald Reagan, as a nearly sure vote to overturn the right to abortion.

“Justice Kennedy seemed to be looking for a middle ground on abortion,” Helen Alvare, an attorney for the National Conference of Catholic Bishops, said afterward. But other lawyers noted that Kennedy had joined Rehnquist’s 1989 opinion that said states may enact any law “reasonably designed . . . to further the state’s interest in protecting potential human life.”

In the Webster case, that opinion drew the support of only four justices. But Bush Administration lawyers are hoping that the President’s two appointees--Justices David H. Souter and Clarence Thomas--will join Rehnquist to make a clear majority.

O’Connor has also sought a middle ground on the abortion issue. She sharply questioned Pennsylvania’s attorney general Wednesday on the law’s requirement that a married woman notify her husband before getting an abortion.

“What’s the (state) interest, to preserve the marriage?” she asked.

“There are several interests. The interest, of course, in protecting the life of the unborn child,” Atty. Gen. Ernest Preate Jr. replied.

“Well, then why not require notice to all fathers? It’s a curious sort of provision, isn’t it?,” O’Connor said, looking perturbed.

She later suggested that the notice provision of the Pennsylvania law may violate the First Amendment’s guarantee of freedom of speech.

“The state is compelling a woman to say something to her husband. Doesn’t that invoke any First Amendment concerns?” she asked.

O’Connor’s comments suggested that she might vote to strike down the notice provision of the Pennsylvania law.

Wednesday’s argument included several other sharp exchanges.

When Preate led off his argument by urging the court to make clear that women do not have “an absolute right to abortion on demand,” the 83-year-old author of the Roe vs. Wade decision leaned forward to his microphone.

“Roe itself said that,” Justice Harry A. Blackmun snapped. “Have you read Roe?”

Preate said that he had. He later mentioned the so-called undue burden standard for invalidating abortion restrictions, an approach suggested by O’Connor. The standard would strike down restrictions that make it virtually impossible for a woman to obtain an abortion.

Justice Antonin Scalia, with a mocking tone to his voice, inquired: “How do I go about determining whether it’s an undue burden or not? What law books do I look to?” O’Connor glanced at him, and then looked away, appearing miffed.

Repeatedly, Scalia has chided O’Connor for adopting hazy legal positions. He has urged that the Roe ruling be flatly reversed.

The usually mild-mannered Justice John Paul Stevens, his face reddening, repeatedly pressed the Bush Administration attorney to admit that his legal approach would allow states to make nearly all abortions a crime.

The Administration’s standard would permit “a complete prohibition, wouldn’t it?” Souter interjected.

“I think it’s best not to answer these (questions) in the abstract,” Starr replied.

“That’s not really a fair answer,” Stevens said. If states can protect “fetal life at all times during pregnancy . . . it follows that a total prohibition, protected by criminal penalties, would meet your standard.”

Stevens also pressed Starr to reveal whether the Administration believes that “a fetus is a person within the meaning of the 14th Amendment.”

Previous Republican Party platforms have supported such a stand. If a fetus were indeed a person whose right to life were protected by the Constitution, all abortions could be deemed to be murder, even in those states where lawmakers choose to permit abortion.

“We do not have a position on that question,” Starr said twice, calling it “an extraordinarily difficult question.”

Stevens did not let up. When Starr maintained that states have a “compelling interest . . . in protecting fetal life,” the white-haired Stevens, sporting his trademark bow tie, inquired where in the Constitution were states given such a power.

“I’m asking what is the textual basis in the Constitution,” he repeated, noting that critics of the abortion right have stressed that no such right is written explicitly in the Constitution. “What is the textual basis for your position that there’s a compelling interest in something that is not a person?” Stevens said.

“I think it is in the nature of our system,” Starr replied. States have broad powers to make laws, even if the Constitution does not expressly grant such powers to lawmakers, he declared.

Times staff writers Marilyn Yaquinto and Paul Richter contributed to this story.

The Two Sides in Abortion Battle

The Supreme Court arguments over Pennsylvania’s restrictive abortion law pitted a prosecutor who has never handled an abortion case against a lawyer who has spent much of the last decade defending reproductive rights.

Defended Law Restricting Abortion

Ernest Preate Jr., Pennsylvania attorney general

Quote: Urged court to uphold state’s law, calling it “an intelligent statute . . . carefully drafted to reflect the teachings of this court.”

His background: A former Marine who served in Vietnam, Preate made his reputation as a hard-nosed county prosecutor in Pennsylvania before being elected to the state office in 1988. He has appeared before the Supreme Court once before and defeated a challenge to the state’s death-penalty law. He faces reelection this year and is considered a likely candidate for governor.

Urged Justices to Strike Down Law

Kathryn Kolbert, lawyer for Planned Parenthood

Quote: “Pennsylvania’s onerous restrictions must fall. Women might again be forced to the back alleys for their health care . . . with grave consequences.”

Her background: A one-time attorney for the Women’s Law Project, Kolbert now is a counsel with the American Civil Liberties Union reproductive freedom project. She has taken part in some of the most important abortion cases in recent years. In 1985, she argued in the Supreme Court against a similar Pennsylvania law that was largely struck down.

The Pennsylvania Law Requires:

Doctors to tell women seeking abortions about fetal development and alternatives to abortion.

Women to put off an abortion for 24 hours after receiving such information.

Doctors to keep detailed records, subject to public disclosure, of all abortions performed.

Married women in most cases to notify their husbands of their plans for an abortion.

Source: Times Staff and Wire Reports