The Supreme Court yesterday let stand a decision allowing Cleveland to continue to enforce an "emergency" zoning ordinance barring an abortion service from operating "in a local retail business district" open to "established professions."
The case involves West Side Women's Services Inc. (WSWS), which in May 1977 signed a 10-year lease for office space in the Ohio city's West Side and started to make improvements and other preparations to perform first-trimester abortions starting the following September.
In the first trimester of pregnancy, the court ruled in 1973, a state may not interfere with "the abortion decision and its effectuation."
Two months after the least was signed, the city council enacted the ordniance. City lawy director Jack Mitchel Schulman said that a full record would show that the law "is not a subterfuge for prohibiting abortion services in the city or in substantial areas of the city or on the West Side of town."
It is undisputed that abortion services are available in Cleveland. But Washington attorney Roy Lucas, representing WSWS and obstetrician-gynecologist Richard J. Derman, said this "does not excuse the passage of a discriminatory and indefensible ordinance."
He said the ordinance decision, handed down by the 6th U.S. Circuit Court of Appeals last August, is "completely at odds" with the Supreme Court's abortion ruling and "stands, for the present, as a precedent that will be invoked in favor of any and every town council effort to circumvent" the ruling.
Schulman denied that the appeals court had interefered with the abortion ruling. He said the ordinance merely forbids abortion clinics "in one type of neighborhood: a limited commercial area adjacent to or surrounded by residences on at least three sides."
WSWS and the physician sought an injunction to prevent enforcement of the ordinance. They alleged that it intruded into the privacy rights of prospective patients who would be irreparably harmed, emotionally and financially, if denied medical care or compelled to seek alternatives to abortion.
Denying the allegations, the city said that the ordinance was a proper exercise of the city's police power.
Chief U.S. District Court Judge Frank J. Battisti refused to grant the injunction holding that WSWS and the doctor hadn't shown a probability of success on the merits of the issues.
The ordinance "appears to be consonant" with a 1977 ruling in which the Supreme Court said it was implying "no limiation on the authority of a state to make a value judgment favoring childbirth over abortion."
He also held that the ordinance doesn't unduly burden "either the abortion decision or the physician-patient relationship" and that plaintiffs don't have "a fundamental right to perform abortions." As for their right to run a business, he said, "that right is no more abridged by this ordinance than by any zoning law."
The appeals court said it found no "abuse of discretion" by Battisti, noting that the "limited facts before us" don't warrant "even a tentative conclusion as to the ultimate merits of the case."
WSWS argued that Battisti had abused his discretion. The city noted that WSWS came to the Supreme Court even though the appeals tribunal had sent the case back to Battisti for an expedited hearing on the merits.
The court took these others actions: MANDATORY MATERNITY LEAVES
The court left intact a ruling by New York State's highest tribunal that the state's Human Rights Law permits it to order an interstate airline to stop requiring stewardesses to take unpaid maternity leaves as soon as they learn they are pregnant.
The case involved only United Air Lines, but its maternity-leave policy is similar to that of all other domestic carriers but Northwest Airlines and Ozark Air Lines.
Although yesterday's action immediately affects only carriers serving New York, one of 33 states where United operates, it could exert pressure on airlines generally to rethink their maternity-leave policies. EMINENT DOMAIN
In a case involving the "just compensation" required by the Constitution for persons whose property is taken for governmental purposes, the court agreed to decide whether a church or other nonprofit entity is owed the sum needed to replace the taken facilities.
Replacement costs are what are owed by the federal government to the Southeastern Pennsylvania Synod of the Lutheran Church in America, the 3rd U.S. Circuit Court of Appeals held in an unprecedented 2-to-1 ruling. But in a successful petition for review, Solcitior General Wade H. McCree Jr. argued that the synod was owed fair market value.
The property in question, 300 acres used for youth summer camps, was taken in 1970 for the Tocks Island Recreation Project. A jury set the fair market value at $740,000, while, the price of developing replacement facilities, in the Poconos, was estimated at $4,361,000.
The appeals court held that to qualify for replacement cost, the condemned facility must provide "a benefit to the community" that will be diminished by condemnation.
But if the government undertakes to determine if a church activity benefits the community, it will do something "abnoxious under our constitutional framework," said one of the appeals-court majority, Judge Herbert J. Stern.
The synod, disagreeing with Stern, and protesting that the government hadn't raised constitutional religious issues until McCree filed his petition, contended that the issue is whether a church, like any other property owner, gets "just compensation." OBSCENITY
The court agreed to rule on the constitutionally of a seizure of 790 allegedly obscene items from a New Hampton, N.Y., store. Its owner complained that a judge accompanied police to the store, "glanced through" but did not thoroughly review the materials before they were carted away. The owner also complained that the search warrant was invalid because it hadn't specified all of the items to be seized.