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Souter enters abortion fray

Published Oct. 18, 2005

The argument had gone on for nearly an hour Tuesday morning when the newest member of the Supreme Court leaned forward to his microphone. The issue before the justices was whether the Bush administration may prevent doctors in federally funded clinics from telling poor, pregnant women about abortion.

The argument marked the first abortion dispute to reach the high court since its liberal leader, Justice William Brennan, retired. Now, the outcome of the case would likely depend on his successor, Justice David Souter.

Although the questions a justice asks during oral arguments do not necessarily indicate how he will rule, Souter clearly seemed troubled by the government's stand.

Under questioning, Bush administration attorney Kenneth Starr conceded that under the government rules, a clinic doctor has no choice but to refer a pregnant woman to a prenatal center, even if his examination revealed that her pregnancy could threaten her life.

"You are telling us the physician cannot perform his normal professional responsibility," Souter said. "You are telling us that (the government) may in effect preclude professional speech."

Souter, joined by Justices John Paul Stevens and Sandra Day O'Connor, repeatedly questioned whether the government policy unduly restricts doctors and jeopardizes the health of women.

The case at hand does not directly confront the landmark Roe vs. Wade ruling and the constitutional right to choose abortion that it established. But it does test whether the conservative court will let the government use its regulations to make abortions more difficult to obtain.

If a skeptical Souter votes to strike down the government rules, he could tilt the decision in favor of the court's shrinking liberal bloc. Even so, his vote in this case will not necessarily signal his views on broader abortion questions or the Roe ruling.

For years, Souter served on the board of a Concord, N.H., hospital. He joined with other members in approving a hospital policy to offer abortions. But during his confirmation hearings, Souter said that his support for the hospital policy did not mean he supported abortion, only that he viewed it as a currently legal option for women.

The four court conservatives _ Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia and Anthony Kennedy _ sounded during Tuesday's arguments as if they supported the Bush administration policy.

If so, Souter and O'Connor will cast the deciding votes.

At stake is the advice given to 5-million poor women who each year visit some 4,000 federally funded family planning clinics. Since 1970, Congress has funded these so-called "Title X" clinics to provide contraception, pregnancy testing and physical exams to poor women and teen-agers.

Congress forbade the clinics from offering or paying for abortions. In 1988, the Reagan administration went a step further by issuing rules forbidding doctors or nurses from referring pregnant women to abortion clinics or even mentioning abortion as an option.

However, the rules say a doctor "must" refer a pregnant patient for "appropriate prenatal" care for the benefit of her "unborn child."

Doctors challenging this so-called "gag rule" say it violates their constitutional rights to free speech and goes beyond the language of the law.

"We depend on our doctors to tell us the whole truth . . . whether we are in a Title X clinic or Bethesda Naval Hospital," said Harvard University Professor Laurence Tribe, who represented the doctors. "Truthful information is being deliberately withheld from these women. There is a censor overseeing the entire process."

But the chief justice questioned whether the First Amendment limits the government's control over its employees. The White House hires speechwriters and public information officers who are permitted to say some things and not others, Rehnquist noted. Why, he asked, wouldn't the same principle apply to federally funded doctors?

Doctors are "not speaking for the state," Tribe said. "They are at the other end of spectrum." He noted that a patient expects honest advice from a doctor, not a political message.

Last year, the high court on a 5-4 vote said a state may forbid abortions in its public hospitals. Moreover, the government may prevent its employees from "promoting" or "encouraging" abortion, the court said.

But O'Connor, who provided the crucial fifth vote in the case, said she would have balked had the state law prevented "health professionals from giving specific medical advice to pregnant women."

That issue is now squarely before the court. A ruling in the case can be expected early next year.