Two Cases Expected to Turn on First Amendment Rights ABORTION: SUPREME COURT ARGUMENTS

By Robert P. Hey, writer of The Christian Science Monitor | The Christian Science Monitor, October 29, 1990 | Go to article overview

Two Cases Expected to Turn on First Amendment Rights ABORTION: SUPREME COURT ARGUMENTS


Robert P. Hey, writer of The Christian Science Monitor, 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.

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. …

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Two Cases Expected to Turn on First Amendment Rights ABORTION: SUPREME COURT ARGUMENTS
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