Abortion Argued at Supreme Court : Justices O’Connor, Kennedy Question U.S. Case for Missouri’s Restrictions

WASHINGTON —  In a dramatic appeal to the Supreme Court’s new conservative majority, an attorney for the Bush Administration urged the justices Wednesday to permit states to outlaw abortion again, calling it “the purposeful termination . . . of actual human life.”

The Constitution gives individuals a right to liberty and privacy in their personal lives, but this right does not include a woman’s decision to end her pregnancy, former Solicitor General Charles Fried said in a brief but powerful argument for overturning the abortion standards set in the court’s historic Roe vs. Wade decision of 1973.

“Abortion is different,” he said, because it involves the ending of a second life.

The abortion issue has provoked such high feeling that 300 to 400 angry and emotional activists demonstrated outside the court building Wednesday. They battled with signs, chants and slogans on the steps of the court and 27 pro-choice demonstrators who crossed police lines were arrested. (Picture on Page 2 and story, Page 26.)

The two conservative justices whose votes may be the key to determining the outcome in the pending abortion case--Justices Sandra Day O’Connor and Anthony M. Kennedy--expressed some skepticism over Fried’s all-out attack on the constitutional right to abortion.

“Do you say there is no fundamental right to decide whether to have a child or not? Do you deny the Constitution protects that right?,” asked O’Connor, the only woman ever to serve on the high court.

If the Constitution does not protect a woman’s decision whether or not to have a child, why could not a state “in a future century . . . require women to have abortions” to curb an overpopulation problem? she asked.

Fried replied that the “Constitution takes no position” on abortion in general, but that it certainly would ban “violently . . . laying hands on a woman and submitting her to an operation.”

Exchanges between Fried, a Harvard law professor presenting the Justice Department’s position and O’Connor and Kennedy highlighted an hourlong argument in the most closely watched court case in a decade. At issue, at least initially, is whether an appellate court in St. Louis correctly struck down as unconstitutional a 1986 Missouri law that placed some state restrictions on abortion.

The case (Webster vs. Reproductive Health Services 88-605) is seen as a crucial test of whether the high court with a new conservative majority is ready to revise or even overrule the Roe decision that made abortion legal.

On Friday, the justices are to vote behind closed doors on the case. Their decision is expected to be announced by July 1.

Though dramatic at some moments, the oral arguments gave only vague clues to the possible outcome of the issue. The questions posed by O’Connor, considered a potential swing vote, suggested that she believes women do have a constitutional right to choose abortion but that states such as Missouri should have more leeway to regulate the practice.

Must Draw Line

Mostly, the lively exchanges illustrated how difficult it is for the justices to draw a line between an individual’s right to privacy and the state’s power to regulate in the public interest.

Only three years ago, the court reaffirmed the abortion right on a 5-4 ruling, citing the 14th Amendment’s protection of individual liberty. But since then, Justice Lewis F. Powell Jr., who voted with those who believe that abortion should be permitted, has retired and been replaced by Kennedy, the third Ronald Reagan appointee on the bench.

Kennedy, who has yet to vote in an abortion case, quizzed Fried on how the Constitution could protect a “marital right to privacy” in matters such as birth control, but not abortion.

In a 1965 case (Griswold vs. Connecticut), the high court struck down as unconstitutional a state law forbidding the sale of contraceptives to adults on the grounds that it violated their right to privacy. The language of this decision then became the basis for the Roe vs. Wade ruling eight years later.

Fried argued that the 1965 ruling was right but that the 1973 application was wrong.

Says Right Similar

Kennedy interrupted to suggest that the “fundamental right” in the 1965 case appeared similar to the abortion right in the Roe ruling.

“Does the (1965) case stand for the proposition that there is a right to determine whether to procreate?,” Kennedy asked.

Fried said that it did not but finally conceded that a woman’s right to “liberty” was at stake in making the decision whether to terminate her pregnancy. But this right, he added, “is matched at all points by state’s interest in potential life.”

Defending the right-to-abortion side, St. Louis attorney Frank Susman said that the “state has no business invading this decision” of whether or not to have an abortion because it is “so emotional, so personal and so intimate.” The right to an abortion is not unusual or unique, he said, but rather in line with this nation’s “deeply rooted tradition that the government steer clear of decisions affecting the bedroom, child-bearing and the doctor-patient relationship.” Other members of the conservative majority--Chief Justice William H. Rehnquist and Justices Byron R. White and Antonin Scalia--aggressively questioned Susman’s thesis.

Rehnquist wondered how this tradition could be considered “deeply rooted” when most states, from the 19th Century until the 1973 Roe ruling, had laws banning or restricting abortion.

Scalia noted that Americans are divided on “whether the fetus is a human life or not.” Because there is so much disagreement throughout the nation, “isn’t this a matter that you vote on?” asked Scalia, also a Reagan appointee.

The Missouri abortion restrictions, which would ban any use of public facilities or employees for performing or assisting in the procedure, were passed by a vote of the state Legislature.

In an exchange with Scalia, Susman raised a troubling issue for the conservatives in this case by questioning whether the court can easily separate the legal underpinnings of birth control and abortion.

Contraceptives such as the IUD and some birth control pills act to abort a newly fertilized egg. Since the Missouri law says in its preamble that “human life begins at conception,” the statute could be read to outlaw some forms of contraception as well as abortion, Susman said.

Even Scalia conceded that Susman “makes the very good point that it is impossible to distinguish between abortion and contraception” if life is said to begin at the moment of conception.

Avoids Larger Issue

Missouri Atty. Gen. William L. Webster, in his defense of the law, for the most part steered clear of the larger issues and confined his argument to a narrow presentation of its provisions. Far from prohibiting abortion, he said, the law merely removes the state and its employees from encouraging or aiding abortion.

Justice John Paul Stevens vigorously questioned Webster on the details of the state law. However, the court’s three other justices who have supported the right to an abortion--Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun, all of whom are over 80--sat quietly through the argument, with only Brennan asking a brief question.

Unlike Wednesday, when the courtroom was packed and protesters lined the sidewalks around the building, Friday will be a quiet day at the court. In a second floor conference room, the justices will go around the table in order of seniority casting a vote on whether the Missouri law should be reinstated.

If Rehnquist, a steadfast critic of the Roe ruling, can get four other votes to reverse the appellate court and revive the statute, he will decide who writes the majority opinion and the broad outline of what it says.

SUPREME COURT AND ABORTION: MILESTONES

1973--Ruling 7-2 in Roe vs. Wade, the court legalized abortion for the first time. It said a woman’s decision to have an abortion in the first three months of pregnancy must be left to her and her doctor. It said that states may take steps to protect fetal life only in the third trimester.

On the same day, Jan. 22, 1973, the court also voted 7-2 to strike down restrictions on facilities that could be used to perform abortions. This led to a new kind of medical facility, the abortion clinic.

1976--The court ruled that states cannot give a husband veto power over his wife’s decision to abort her pregnancy. By a separate 5-4 vote, the court said parents of minor, unwed girls also cannot have such an absolute veto.

1977--Voting 6 to 3, the court decided that states have no legal obligation to pay for “non-therapeutic” abortions.

1979--The court reaffirmed its intention to give doctors broad discretion in determining “viability”--when a fetus can live outside the mother’s womb. The vote was 6-3.

Later that year, the court by an 8-1 vote elaborated on its parental consent decision of 1976. It implied that states may be able to require an unmarried minor to obtain parental consent to an abortion so long as the state law provides an alternative procedure to parental approval, such as letting the minor seek a state judge’s approval instead.

1980--By a 5-4 vote, the court ruled that the federal government and individual states do not have to pay for abortions, even medically necessary ones, for women on welfare.

1981--The court ruled by a 6-3 vote that states may require doctors consulted by some young girls to try to inform the parents before performing a requested abortion.

1983--Again ruling by a 6-3 margin, the court said states and local communities may not require all abortions for women more than three months pregnant to be performed in a hospital.

The court also struck down regulations that, among other things, imposed a 24-hour waiting period between the signing of an abortion consent form and the medical procedure and required doctors to tell women seeking an abortion that a fetus is a “human life.”

1986--The court voted 5-4 to strike down Pennsylvania abortion regulations requiring doctors to inform women seeking abortions about potential risks and about available medical assistance benefits for prenatal care and childbirth.

The court also struck down requirements that doctors use only certain methods in third trimester abortions.

1987--A 4-4 split of the justices had the effect of invalidating an Illinois law that could have made abortions more difficult to obtain for some teen-agers.

1989--The Bush Administration asks the court to overturn Roe vs. Wade.

SOURCE: Associated Press

CALIFORNIA ABORTIONS--Women will retain the right to an abortion no matter how the high court rules, the attorney general says. Page 28

ARGUMENT EXCERPTS: Page 24

Activists Clash--Angry protesters on each side of the abortion issue come together outside the court. Page 26