Two Cases Expected to Turn On First Amendment Rights

ABORTION: SUPREME COURT ARGUMENTS

By , Staff writer of The Christian Science Monitor

AFTER a year of hefty political presence, of marches and countermarches, the emotional issue of abortion climbs the long marble steps of the United States Supreme Court building tomorrow. Inside the august building lawyers in two similar cases will argue their positions before the nine justices. It will be the only public discussion of the cases, thus far the only two concerning abortion that the court is considering this term.

Like other Americans on both sides of the abortion question, legal scholars wonder whether the result of these two cases will be to leave the 17-year-old national right to abortion largely unaffected, to abridge it with another in a recent series of restrictions, or to overturn it entirely.

The Supreme Court likely will not give its answer for months. Each alternative is possible, legal experts say.

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The two cases are Rust v. Sullivan and New York v. Sullivan. Both challenge as unconstitutional regulations issued two years ago by the US Department of Health and Human Services. They forbid any medical clinic that receives government funds from any mention of the option of abortion to a pregnant woman.

Both cases are complex; they involve not only abortion, which advocates say is rooted in constitutional guarantees of privacy, but also issues of the First Amendment's guarantee of free speech and the intent of Congress.

``What makes these cases different'' from other abortion-related cases that the court might have decided to consider ``is the First Amendment angle,'' says Prof. Lea Brilmayer of the Yale University Law School.

Plaintiffs argue that physicians who work for government-funded clinics have a First Amendment right to be able to give pregnant patients a complete picture of options available to them, including abortion. For government to prevent them violates their First Amendment right to free speech, they say.

Free-Speech Question

``The real question is whether the regulations violate the free speech of the care provider,'' says Prof. Suzanna Sherry of the University of Minnesota Law School.

There also exist ``the First Amendment rights ... of the patient to get some information'' on all possible options, says Prof. Erwin Chemerinsky of the University of Southern California Law Center.

Prof. Laurence Tribe of Harvard Law School will argue for the plaintiff in the Rust v. Sullivan case before the court. He says, ``The case really is more about free speech than abortion.''

It is also about the intent of Congress, plaintiffs insist. In a 1970 law that provided money for public health services Congress said none of the funds ``shall be used in programs where abortion is a method of family planning.'' Eighteen years later the Reagan administration issued the regulations now being challenged in the Supreme Court.

The lawyers for the plaintiffs say it never was the intent of Congress to forbid discussion or even mention of abortion in these programs.

Legal experts say the government regulations are part of a pattern over the past several years of gradual erosion, by the imposition of regulations that restrict abortions in one way or another, of a woman's right to an abortion .

Government at different levels ``tends to chip away at the edges'' of the abortion right, Professor Brilmayer says. Regulations ``can't attack the right to abortion directly. . . . They're really trying to regulate abortion to death. And one of the ways to regulate it is to place restrictions on what doctors can say to their patients.'' Examples cited

She cites other examples of state restrictions: requirements that parents of a minor be notified before an abortion may be preformed, or that the husband of a married woman similarly be notified in advance.

Brilmayer says the Supreme Court ``could address [these cases] on fairly narrow grounds'' - the First Amendment right of free speech. That could leave the right to abortion unaffected for now.

But if the basis of the court's decision is the question of abortion and the underlying issue of a woman's right to privacy, and if the majority upholds the government regulation, ``then they will encourage the states to pass more'' restrictions, Brilmayer says. ``And they will put off the day of reckoning'' - deciding whether to sustain or overturn the landmark 1973 Roe v. Wade decision, which guaranteed the right to abortion.

The court could seize on these two cases to overturn Roe: ``If the opponents of abortion rights were ready to move, and they had their forces marshaled at this point, they could just knock Roe out,'' Brilmayer says. But many legal authorities think this result is unlikely, and that the ruling will be based on more narrow grounds.

``There'll be much broader cases in the future,'' Brilmayer notes, that could offer a better opportunity for a broad review of abortion rights.

One of the justices whose eventual positions will particularly interest legal experts is Antonin Scalia, known as a strong proponent of free speech and an opponent of abortion. Which issue will he consider dominant?

Another is David Souter, on the court less than a month. During his confirmation hearings this summer several Democratic senators vainly tried to find out what he thought about abortion; he insisted he had an open mind.

``If he says at the first opportunity: `Out with Roe,' '' comments Brilmayer, that will make it much more difficult for the next Supreme Court nominee of President Bush to try to gain confirmation without stating his abortion position before confirmation.

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