Reagan switches strategy on abortion challenge in court. Attacking freedom-of-choice ruling, administration stresses states' rights
Washington — The Reagan administration is pulling out the stops in its effort to overturn the 1973 landmark Supreme Court decision legalizing abortion. But most observers here, including both ``pro-choice'' and ``right to life'' advocates, do not think the effort will succeed.
Although administration opposition to Roe v. Wade is well known, not until this week had Justice Department lawyers launched a head-on assault on the abortion issue.
That assault came Monday, when acting Solicitor General Charles Fried filed a ``friend of the court'' brief in two abortion cases to be heard during the next term of the United States Supreme Court, beginning Oct. 7.
The brief says in part: ``The textual, doctrinal, and historical basis for Roe v. Wade is so far flawed and . . . is a source of such instability in the law that this court should reconsider that decision and . . . abandon it.''
The Supreme Court ruled 7 to 2 in Roe v. Wade that under the 14th Amendment, all American women have a ``right of privacy'' that is ``broad enough to encompass a woman's decision whether or not to terminate her pregnancy.''
In effect, the Reagan administration is contending in ABORTIONABORTION its brief that women do not have a constitutional right to abortion, and that the states -- not the federal government -- should regulate abortions. In several states this would mean that abortions would immediately become illegal, and in many others it would become much more difficult for women to have abortions.
President Reagan, who has been outspoken in opposing abortion, personally approved the filing of the brief.
The action was hailed by anti-abortion activists and denounced by women's groups and pro-choice advocates.
Judy Goldsmith, president of the National Organization of Women, called the administration's effort ``an extremist move born of desperation.''
Doug Johnson, legislative director of the National Right to Life Committee, praised the administration. He said that even if the current effort fails to overturn the abortion precedent, Reagan may have an opportunity before the end of his term to appoint another Supreme Court justice and change the philosophical makeup of the court.
``There is no shortage of constitutional scholars who share the view that Roe v. Wade is unconstitutional,'' Mr. Johnson says.
The solicitor general's move, challenging Supreme Court precedent, is said to be particularly unusual, because the administration argued and lost an abortion case before the Supreme Court only two years ago. The 1983 argument followed a more subtle strategy formulated by former Solicitor General Rex E. Lee, which did not directly challenge the Roe v. Wade precedent. The administration lost the 1983 case in a 6-to-3 vote that was widely viewed as a reaffirmation of Roe v. Wade, a precedent that is an anathema to many Reaganites.
This time around, the government intends to take the issue square on.
The brief maintains that Roe v. Wade is a product of judicial activism, rather than constitutional law. It argues that the 1973 abortion precedent seems to take into consideration only one value -- a woman's right to an abortion. The government contends that other values such as ``the state's interest in maternal health'' and ``unborn and future life'' should be taken into consideration.
In Roe v. Wade the court established guidelines to help determine when during a pregnancy an abortion might be legally appropriate. The court divided a pregnancy into three phases, or trimesters. If a fetus is in the first trimester, the mother and her doctor can decide whether to seek an abortion. States may pass laws restricting abortions during the second trimester, except in cases when a woman's health is in danger. A fetus in the third trimester is said to be ``viable,'' or capable of surviving outside the womb, and states may outlaw abortions in such cases.
The government brief notes, however, that advances in medical technology have made it possible to sustain a fetus at a much earlier stage in its development, making the court's trimester guidelines less clear-cut.
The two cases to be argued next fall involve state abortion laws struck down by federal appeals courts.
One law, in Pennsylvania, required that women be advised prior to an abortion about possible detrimental effects of having an abortion.
An Illinois law subjected to criminal prosecution any doctor who carried out an abortion of what the state considered a viable fetus.