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Souter Letter Opposed Role in Parental Consent Bill
Judge Rejects Making Others' 'Moral' Choices

By David S. Broder and Ruth Marcus
Washington Post Staff Writers
Thursday, July 26, 1990

As a judge on the New Hampshire Superior Court in 1981, Supreme Court nominee David H. Souter wrote a letter on behalf of the court urging the state legislature not to enact a bill that would have forced the judges "to make fundamental moral decisions" on abortions for pregnant minors.

A leading abortion-rights advocate in the state, who solicited the letter, said it "has been a critical part of preventing passage of parental consent legislation" in New Hampshire for the last nine years.

After being contacted by state Rep. Elizabeth Hager (R), the abortion-rights supporter, Souter wrote the May 13, 1981, letter on behalf of the judges of the New Hampshire Superior Court. The letter, while specifically neutral on the question of parental consent, asked that judges on the court not be placed in the position of applying their own views to such cases.

Judicial involvement would have been necessary in order for a parental consent law to pass constitutional muster.

The Supreme Court had ruled that any law requiring a minor to receive permission from her parents to have an abortion had to give her the alternative of obtaining permission from a judge.

Hager said Souter's letter opposing the "judicial bypass" option "has been very influential" in helping kill the parental consent laws favored by abortion opponents. However, she said, "The tone of the letter clearly indicates his purpose was to defend the judicial system against the bypass, and not take a stand against the legislation."

White House spokeswoman Alixe Glen said there would be no comment on the letter.

Souter, meanwhile, began a round of courtesy calls on Capitol Hill, meeting with Senate leaders and displaying a New Englander's penchant for brevity and reserve that may frustrate any critics at his confirmation hearings in September.

With abortion a central focus of the debate over President Bush's choice to succeed retiring Justice William J. Brennan Jr., Souter's letter on the politically sensitive issue seems certain to draw close scrutiny. Groups on both sides of the issue have been studying his record for an indication of the federal appeals court judge's position.

A Washington Post-ABC News poll found that an overwhelming majority of Americans believe Souter's views on abortion should not determine the fate of his nomination. But two out of three said he should be questioned about abortion and other controversial legal issues.

While the 1981 letter may have been useful to abortion-rights supporters, it also reflected a view of the role of judges that is in line with the philosophy espoused by Bush and his predecessor, Ronald Reagan.

Writing to Rep. Roma H. Spaulding, who chaired the New Hampshire House committee considering the parental consent proposal, Souter said the legislation would "leave it to individual justices of this court to make fundamental moral decisions about the interests of other people without any standards to guide the individual judge" and based on "only the individual judge's principles and predilections."

Sounding a concern of many conservatives, he noted that, "Much criticism of the role of the judiciary in this country has characterized judicial activity in the application of constitutional standards as no more than the imposition of individual judges' views in the guise of applying constitutional terms of great generality."

He said the proposed bill "would force the Superior Court to engage in just such acts of unfettered personal choice" and urged the legislature not to enact any parental consent bill that involved "the exercise of judicial choice."

The letter made no reference to the Supreme Court's earlier rulings, in which the justices said parents may not exercise "an absolute, and possibly arbitrary, veto" over their daughters' abortion decisions.

In a 1979 decision striking down a Massachusetts parental consent statute, the court required that such laws contain elaborate judicial bypass provisions giving pregnant minors the option of going to a judge to argue that the abortion would be in their best interest or that they are mature enough to make the decision on their own.

Souter's letter said only that "some judges" "could not in conscience issue an order requiring an abortion to be performed," a fact that would lead to "shopping for judges" who would allow abortions.

"For these reasons, I have been directed to request on behalf of the court that any bill you may pass on this subject not authorize the exercise of judicial choice by justices of the Superior Court" to determine whether minors should obtain abortions, the letter concluded.

Hager, a member of the board of the National Abortion Rights Action League, said she decided to contact Souter when a parental consent bill passed by the state Senate was due for a hearing in the House. She said he was the only judge she knew well-enough socially that "I felt comfortable picking up the phone and having this conversation.

"I told him there was a judicial bypass in the bill and I hoped he would read it and talk to his fellow judges, because I didn't think they would want to be dealing with minors who could not talk to their parents about obtaining abortions.

"He agreed and he talked to his fellow judges, and he drafted the letter, and they approved it, and he sent it to the committee. . . . It was very influential," she said.

Four years later, when the issue came up again, she called Souter, by then on the state Supreme Court, who referred her to Richard Dunfey, head of the Superior Court judges. "I sent him a copy of the {Souter} letter and he made a couple of minor changes and sent it to the legislature over his signature," she said.

Parental consent legislation was killed that year and again in 1986, Hager said, crediting the letter as being an important factor.

Dunfey said yesterday he could generally confirm that account. He said he and other judges had collaborated with Souter on the 1981 letter.

The Post-ABC News Poll of 778 randomly selected adults, taken Tuesday, the day after Souter's nomination, found almost two-thirds of those phoned saying Souter should be asked about his abortion views but only one in 10 saying those views should be the biggest factor in his confirmation. One-third said they deserved some consideration and more than half said they should not be considered at all.

Because of the practical difficulties of conducting an opinion poll in a single evening, the results should be read as indicating the general direction of public attitudes rather than precise estimates.

The search for evidence of Souter's views turned up a speech on another controversial topic yesterday. The Manchester Union-Leader reported Souter,in a 1976 commencement speech, attacked federal affirmative action guidelines as "affirmative discrimination." The newspaper said Souter denounced such policies, saying "the government should not be involved in this."

Visiting the offices of Senate Majority Leader George J. Mitchell (D-Maine) and Minority Leader Robert J. Dole (R-Kan.), the nominee deflected virtually all questions from the reporters who traipsed after him.

Only Dole, whose presidential ambitions died in Souter's home state in the 1988 New Hampshire primary, broke the air of formality.

A reporter, running low on questions that Souter might answer with more than a diplomatic swerve, asked him why he would want to leave New Hampshire for Washington. "Well," he responded, "I don't know if anyone wants to leave New Hampshire."

"I did," quipped Dole after only a moment's pause, throwing the whole room, including Souter,into gales of laughter.

Staff writer Helen Dewar contributed to this report.

On May 13, 1981, David H. Souter, then a New Hampshire Superior Court judge, sent this letter to Roma H. Spaulding, chairman of the New Hampshire House Committee on Health and Welfare: Dear Madam Chairman:

I am writing as a member of the committee to speak for the Superior Court on proposed legislation that would affect the court. The full court met on May 7 and directed me to write to you to express the court's position on SB 194, which you have scheduled for hearing on May 13.

The judges do not believe it is appropriate for the court to take a position on the basic question addressed by the bill, whether parental consent should be required before an abortion may be performed upon an unmarried minor. The court's concern is directed, rather, to that provision of the bill that would require a justice of the Superior Court to authorize the performance of an abortion upon such a minor when there is no parental consent, if the justice determines "that the performance of an abortion would be in . . . {the} best interests" of a minor who is "not mature."

The members of the court find two fundamental problems inherent in this provision. First, it would express a decision by society, speaking through the Legislature, to leave it to individual justices of this court to make fundamental moral decisions about the interests of other people without any standards to guide the individual judge. Judges are professionally qualified to apply rules and stated norms, but the provision in question would enact no rule to be applied and would express no norm. In the place of a rule or a norm there would be left only the individual judge's principles and predilections. As carefully considered as these might be, they would still be those of only one individual, not those of society. Much criticism of the role of the judiciary in this country has characterized judicial activity in the application of constitutional standards as no more than the imposition of individual judges' views in the guise of applying constitutional terms of great generality. The provision that I have quoted from the present bill would force the Superior Court to engage in just such acts of unfettered personal choice.

The court's second concern is with the necessarily moral character of such choice and the resulting disparity of responses to requests that judicial discretion be exercised. As you would expect, there are some judges who believe abortion under the circumstances contemplated by the bill is morally wrong, who could not in conscience issue an order requiring an abortion to be performed. There are others who believe that what may be thought to be in the "best interests" of the pregnant minor is itself just as necessarily a moral as a social question, upon which a judge may not morally speak for another human being, whatever may be that judge's own personal opinion about the morality of abortion. Judges in each such category would be obligated to indicate that they could not exercise their power in favor of authorizing abortions to be performed on immature pregnant minors. The inevitable result would be required shopping for judges who would entertain such cases. In other words, a principled and consistent application of the quoted provision would be impossible.

For these reasons I have been directed to request on behalf of the court that any bill you may pass on this subject not authorize the exercise of judicial choice by justices of the Superior Court to determine whether an abortion should be performed upon a pregnant, immature minor whose parents do not consent to that course of action. Yours respectfully, David H. Souter, Justice New Hampshire Superior Court

WASHINGTON POST-ABC NEWS POLL

Q. The U.S. Supreme Court ruled in 1973 that a woman can have an abortion if she wants one at any time during the first three months of pregnancy. Do you favor or oppose that ruling?

Favor .........56%

Oppose .........39

Dont' Know ..... 5

Q. As you may know the Senate confirms presidential nominees to the U.S. Supreme Court. Should the Senate consider or not consider a nominee's views on the abortion issue in deciding whether the nominee should serve on the Supreme Court?

If should consider: Should it be the biggest factor or not in deciding whether the nominee serves on the court?

Should be the biggest factor .........................10%

Should not be the biggest factor .....................32

Should not consider views on abortion ................52

Don't Know ........................................... 6

Q. Have you read or heard anything about the appointment of David H. Souter to the Supreme Court?

Yes .......58%

No .........42

Q. Do you approve or disapprove of Souter's nomination to the Supreme Court?

Approve ...........40%

Disapprove ........15

Don't Know ........45

Q. Generally speaking, would you say Souter is qualified or not qualified to be a Supreme Court Justice, or is that something you don't have an opinion on?

Qualified ......... 32%

Not qualified ....... 3

Don't Know ......... 65

Q. Do you thin the Senate Judiciary Committee shold or should not question Souter about his views on issues such as abortion?

Yes..........65%

No........... 31

Don't know.... 4

Figures are based on a Washington Post-ABC News Poll of 750 adults nationwide conducted overnight July 24. Interviewing was conducted by Chilton Research Services of Radnor, Pa.

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