Abortion: Just Say No Advice

In the sad heart of the south Bronx, choices don't seem to be one of the luxuries for pregnant teenagers. Disease is common, private doctors are scarce, poverty reigns. On East 149th Street, at the Planned Parenthood family-planning clinic known as The Hub, Dr. Irving Rust has been counseling the teenagers for 12 years. Each year, thousands of women pass through; most are black or Hispanic and can't afford medical care. Roughly 80 percent of those who discover that they're pregnant decide to get abortions. The clinic cannot use federal money to fund abortions, but Rust and other physicians have always been able to provide referrals.

That's about to change. Last week the US Supreme Court upheld government regulations that barred federally funded clinics like The Hub from discussing abortions with patients. The 5-to-4 decision affects about 4,000 clinics, serving 4.5 million women, mostly with low incomes. Abortion itself is still constitutional, but doctors cannot mention the procedure as an alternative; they can't even suggest a look at the Yellow Pages. If a woman asks, all the clinic can say is that it "does not consider abortion an appropriate method of family planning." Unless Congress rescinds the regulations--a debate has already begun--the only way around them is to forfeit the funds. In the case of The Hub, that means $450,000 annually, a quarter of its budget. And that's exactly what The Hub plans to do. "Not to tell a woman who comes in here what her options are is unethical," says Rust. "And not to mention abortion as an option for family planning is ridiculous."

Along with the city and state of New York, Planned Parenthood had challenged the regulations on many grounds. They said the rules, issued in 1988 by the Reagan administration, went far beyond anything Congress intended when it decided to fund family-planning centers in 1970. Worse, the rules violated a woman's right to an abortion and a doctor's First Amendment right to speak. But the court, bitterly divided, rejected the arguments. "The government has not discriminated on the basis of viewpiont," wrote Chief Justice William Rehnquist. "It has merely chosen to fund one activity over another." The dissent thought that disingenuous. "The purpose and result of the challenged regulations is to deny women the ability voluntarily to decide their procreative destiny," said Justice Harry Blackmun.

The key to the conservative majority was Justice David Souter (box), the Bush appointee whose views on abortion remain largely unknown. Had Justice William Brennan still been on the bench, the case would have come out the other way. During oral argument last fall, Souter seemed skeptical of the government's position. But he expressed no such reservations last week, making abortion-rights advocates all the more concerned that he would vote to overturn Roe v. Wade, the 1973 ruling that made abortion a constitutional right.

Rehnquist's majority opinion went to considerable lengths to avoid framing the case in terms of abortion. Indeed, it referred only in passing to Roe. Both sides in the unrelenting abortion debate nonetheless reacted with characteristic vitriol. The anti-abortion group Operation Rescue hailed the ruling as "another step toward making child-killing illegal." Eleanor Smeal of the Fund for the Feminist Majority said "there is no question some poor women will die as a result." Antonin Scalia aside, the justices abhor getting in this kind of brawl, their reluctance, term after term, to confront Roe head-on undoubtedly stems from a desire to keep the court out of the political head winds. Sounds prudent, but it doesn't work. The irony is that until the justices finally resolve their ambivalence about Roe--one way or the other--abortion will keep coming back to the court.

In his eight months on the court, David Souter has provided the swing vote in several 5-4 decisions.

In Rust v. Sullivan, the court found that doctors in federally funded family-planning clinics may not counsel patients on abortion.

After Arizona v. Fulminante, police-coerced confessions may be deemed "harmless error" and permitted in court.

In Auto Workers v. Johnson Controls, the court ruled that barring women of childbearing age from certain hazardous jobs violates anti-discrimination law.