The Supreme Court yesterday cleared the way for enforcement of a congressional ban on federal funding of abortions that do not endanger the life of the mother.
The action enables the Department of Health, Education, and Welfare within four weeks to deny Medicaid funds for so-called nontherapeutic abortions under an amendment to the current HEW appropriations law sponsored mainly by Rep. Henry J. Hyde (R-III.).
Under Supreme Court rulings, an injunction against enforcement of the Hyde amendment ordered by a federal judge last year remains in effect until one of two things happens; he lifts the stay or, in 25 days, the court officially notifies him of its action - whichever comes first.
HEW Secretary Joseph A. Califano Jr. said his department "is ready to implement" the amendment but "is still legally prohibited from doing so" because the stay "is still technically in effect."
Once the injunction is formally dissolved, HEW "will take the administrative action necessary to enforce the passed by Congress," Califano said.
Meanwhile, HEW is continuing to fund Medicaid elective abortions in states that permit them.
The Hyde amendment - written into the current HEW appropriations law - has three months to run, expiring with the fiscal year of Sept. 30.
Last night, the Senate rejected a toughened version of the Hyde amendment recently adopted by the House for the fiscal year to start Oct. 1. That version - intended to be a millstone around the necks of anti-abortion legislators - would have barred federal funding of abortions under any circumstances.
Instead of the House proposal, the Senate adopted language that would ban the government from paying for abortions except when necessary to save the mother's life if the fetus is carried to term or in cases or rape or incest.
The language was written by the Senate Appropriations Committee into HEW's $60.7 billion appropriations bill. The Senate adopted the language by rejecting, 42 to 56, a proposal by Sen. Bo Packwood (R-Ore.) to delete any restrictions on the use of federal monies for elective abortions.
The Supreme Court action came nine days after its rulings that neither the Constitution nor the Social Security Act requires states that spend Medicaid funds for childbirth to pay for abortions in poor women that they do not deem to be medically necessary.
Those rulings came in cases from Pennsylvania and Connecticut in which the Hyde amendment was not an issue.
"The issues in those cases present policy decisions" of the widest concern," Justice Lewis F. Powell Jr. wrote then in the opinion for a divided court. "They should be resolved by the representatives of the people not by this court.
Citing those rulings yesterday, the court nullified a judgment by U.S. District Court Judge John F. Dooling Jr. of Brooklyn that the Hyde amendment is unconstitutional - the judgment on which he based the injunction.
The court sent the case back to Dooling "for further consideration in light of" the decisions but without further comment.
Pro-abortion forces suggest that Dooling may impost the injunction anew on the ground that the ban in the amendment on abortions "except when the life of the mother would be endangered if the fetus were carried to term" is much stricter than the rules for elective abortions laid down by the two states in the Supreme Court cases.
But Justice Department and other observers told a reporter they believe the court has bound Dooling to constitutionality of the amendment and to lift the injunction.
Proabortion physicians and Medicaid recipients challenged teh Hyde amendment last Sept. 30, just as it was about to take effect.
In staying it, Dooling noted that in a report on it adopted by the House and Senate, a conference committee denied an intent "to prohibit medical procedures necessary for the termination of an actopic [fallopian] pregnancy or the treatment of rape or incest victims."
Rejecting arguments by the government and by pro-abortionists, including then Sen. James L. Buckley (Con,-R-N-Y.), Dooling ruled the amendment unconstitutional, saying it denies "the needy, the wards of the government, . . . the means to exercise" a right guaranteed to those with the money to pay for an abortion.
Planned Parenthood of New York City, one of the parties that sought the injunction, said yesterday that it will argue before Dooling that the Hyde amendment remains unconstitutional because it doesn't permit funding for "medically necessary" abortions. The phrase commonly is used to embrace abortions deemed by a physician to be essential to the physical health of the pregnant woman.
Alfred Moran, vice president of Planned Parenthood, said the organization also will contend that it is not mandatory for Dooling to deal with the issue in 25 days.
In Chicago, the anti-abortion Americans United for Life Legal Defense Fund, which represented Buckley. Hyde, and Sen. Jesse Helms (R-N-C.) in the litigation, said, however, that the Supreme Court's nullification of the injunction "is consistent with" its rulings last week.
The group said that the rulings in the Connecticut and Pennsylvania cases "clearly allow the federal government to adopt a pro-natalist policy and encourage women to choose childbirth over abortion. Our position has been vindicated by today's Supreme Courut order."
The American Civil Liberties Union said that it will request Dooling to continue his injunction, "based on the legal and practical differences between the Hyde amendment and the state Medicaid restrictions upheld by the Supreme Court last week."
HEW has estimated that up to 300,000 Medicaid-financed abortions were performed in 1975.
The three dissenters in the Supreme Court rulings on June 20 predicted thatpoor women in large numbers now face a choice between bearing children neitherr they nor the world want or need, or resorting to quacks who use unreliable, unsafe and torturous techiques.