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
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.
"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. …