The Supreme Court agreed yesterday to consider the volatile question of whether Congress can continue to refuse to pay for most abortions for poor women.
The issue has become the centerpiece of the abortion controversy in recent years, regularly tying up congressional debate on the budget and often dominating local congressional campaigns.
It concerns not the legality of abortion, which was decided by the court in 1973, but the right to a publicly financed, medically-necessary abortion, and Congress' political decision to treat abortion differently from most other medical procedures for which federal funds are routinely available under the Medicaid program.
The Hyde amendment to the health, education and welfare appropriation for fiscal 1979 denied funds for an abortion except in three situations: where the mother's life would be endangered without it, where the mother was the victim of rape or incest, or where two physicians attested to possible health damage" in the absence of the abortion.
A more restrictive amendment this year dropped the final exception.
The effect has been to cut the number of Medicaid abortions from hundreds of thousands annually to two or three thousand.
The Supreme Court has already ruled that legislatures are not required to privide money for "voluntary" abortions, which are not medically necessary.
But the Hyde amendment goes much further than that and in April 1978 U.S. District Court Judge John F. Grady in Chicago ruled that it was unconstitutional, along with a similar Illinois statute.
"A pregnant woman's interest in her health so outweighs any possible state interest in the life of a non-viable fetus," he wrote, that the government has no "legitimate" reason to deny the funds.
It was Grady's decision -- in the case of the United States vs. David Zbaraz -- that the Supreme Court agreed to consider yesterday. In agreeing to hear arguments on the merits of the issue, the court reserved judgment on whether to treat it as a constitutional question, which could resolve the controversy, or as a simple legal question, which would not.
In other action yesterday, the court let stand lower court opinions that have blocked government enforcement actions in sex discrimination cases involving teachers and other school employes.
Three U.S. circuit courts have held that while the government may cut off federal school assistance to school systems discriminating against students on account of sex, Congress gave it no authority to do the same when teachers or other non-students are the victims.
As a result, some 272 sex discriminaton cases have been held in abeyance by the Department of Health, Education and Welfare while it awaits a resolution of the issues.
The major case declined by the court yesterday stemmed from an HEW attempt to cut off funds to several Maine school districts for their refusal to allow teachers to use sick leave to get time-off during pregnancy.
The government determined that the denail was discriminatory because it treated pregnancy differently from other temporary disabilities.
Government lawyers yesterday held out the hope that conflicting opinions by other circuits in pending cases might prompt the cout to consider the issue. b
Barring that, officials could seek a congressional amendment to permit the enforcement actions.
In another action, the court let stand a lower court opinion that a suit against the United Methodist Church was not an unconstitutional infringement of freedom of religion.
Residents of California's Pacific Homes, a church-sponsored retirement community, had alleged fraud in their multimillion-dollar suit.
The church argued that as an unincorporated and loosely structured operation, it could not even respond to such a suit. To force it to respond, it contended, would require a restructuring of the church and represent a prohibited intrusion of government into church affairs.
The court also agreed to hear an affirmative action case concerning the award of road construction contracts by the Burreau of Indian Affairs exculsively to Indian-owned firms. Unlike other, more prominent, affirmative action cases, however, the one accepted by the court yesterday deals with legal questions, not constitutional issues..
The lower court in this case held that the bureau policy violates a law that requires public advertising of construction contracts before an award.
The Supreme Court will hear arguments today on one of the most significant affirmative action questions: the setting aside of 10 percent of public works contracts for minority contractors.