A U.S. Supreme Court controversy over a Virginia law that requires mid-pregnancy abortions to be performed in hospitals rather than in clinics may be resolved without a ruling on the major constitutional issues, several justices hinted yesterday in oral arguments on the case.
The clinics can simply be licensed as outpatient surgical hospitals, it was suggested, thus making them eligible to perform the abortions.
The case stemmed from the arrest and conviction of Dr. Chris Simopoulos for performing a second-trimester abortion in 1979 on a teen-age girl in his Falls Church clinic, instead of at a hospital.
Simopoulos, who received a two-year sentence with all but 20 days suspended after his highly publicized trial in 1980, subsequently was barred by state medical authorities from performing abortions for two years at his clinic in Falls Church and his other clinic in Woodbridge.
Simopoulos challenged the law, contending among other things that the hospitalization requirement for abortions after the first three months of pregnancy was unconstitutional. The case was heard yesterday along with related abortion cases from Missouri and Akron, Ohio.
Justice Lewis F. Powell, a Virginian, started off the questioning by asking whether the doctor's clinic in Falls Church had ever applied for a license as an outpatient hospital. Roy Lucas, Simopoulos' lawyer, said his client had not applied.
Deputy Virginia Attorney General William G. Broaddus, in response to questioning from Justice Sandra Day O'Connor, said that Simopoulos' clinic would have been eligible for licensing.
"Might the state have even granted the license?" asked Justice William J. Brennan Jr.
"Yes, sir," responded Broaddus. Broaddus also acknowledged that the clinic -- along with the hospitals -- would then be legally permitted to do the abortions.
If the court decides that Simopoulos should have applied for such a license, it will not have to rule on the Virginia abortion law at all. The court generally prefers to avoid constitutional issues whenever possible.
Chief Justice Warren E. Burger and Justices John Paul Stevens and Harry A. Blackmun also asked questions reflecting their interest in the licensing issue. While such comments are not necessarily predictive, the unusual interest by so many members of the court clearly suggests that they are thinking about that solution.
They still must deal with hospitalization requirements in the other two cases heard yesterday. But in Akron and Missouri, abortion clinics cannot be licensed as hospitals, lawyers told the court yesterday.
On the constitutional issues, Lucas argued that Virginia's law breached the Supreme Court's 1973 holding in Roe v. Wade. That decision allowed largely unregulated abortions in the first three months of pregnancy but said the states could impose certain regulations in the second three months in order to protect the health of the mother.
Lucas said Virginia never demonstrated that its restrictions had anything to do with the mother's health.
Lucas also argued that Simopoulos' trial violated constitutional safeguards for criminal defendants.