The Supreme Court agreed yesterday to review the constitutionality of restrictive abortion laws in three states, opening the door for what could become its most expansive consideration of the issue since its 1973 ruling legalizing abortion.
In one of the six cases the court agreed to review, lawyers are explicitly asking the court to rethink important aspects of the 1973 decision barring virtually all government regulation of abortions in the first three months of pregnancy. Attorneys on both sides say privately that they believe some significant modifications are a real possibility.
The laws, from Virginia, Ohio and Missouri, place hurdles of varying difficulty between women and abortions during the first six months of pregnancy. Restrictions range from 24-hour waiting periods to mandatory hospitalization in the second trimester to criminal statutes requiring doctors to describe the fetus' appearance and tell the mother it is "human life."
The court action comes at a sensitive time, roughly 10 years after the court considered the original abortion ruling, Roe vs. Wade, and just as Congress considers bills to strip the federal judiciary of jurisdiction over a number of contentious social issues, including abortion.
The timing, in the absence of two of the justices (William O. Douglas and Potter Stewart) who made up the 1973 majority, worries "pro-choice" advocates. They believe that Chief Justice Warren E. Burger, also part of the 1973 majority, may have modified some of his views as well.
"I think you could see a whole revamping of the entire issue," said one lawyer involved in yesterday's cases who asked not to be identified.
"I just knew the time was right" to seek a rethinking of Roe vs. Wade, said Akron City Attorney Robert D. Pritt, who asked the court to permit greater government regulation of first-trimester abortions.
In Roe vs. Wade, the justices voted 7 to 2 to strike down abortion bans in over 40 states. The court said that first-trimester abortions are a matter between mother and doctor while second-trimester abortions may be regulated "in ways that are reasonably related to maternal health." Abortions in the final weeks may be banned under the ruling.
Among the cases accepted for review yesterday was an appeal by Dr. Chris Simopoulos, a Woodbridge, Va., physician convicted in 1980 of performing an abortion on a teen-age girl in a clinic instead of in a hospital, as required by state law. Simopoulos is one of the few doctors in the country to have been prosecuted and served time in jail for abortion violations since 1973.
The most far-reaching of the laws to be considered next term was enacted in 1978 by the Akron City Council. Patterned after a national "model" drawn up by "right-to-life" activists, the ordinance mandates, among other things:
* A 24-hour waiting period for abortions, including first-trimester abortions.
* Parental or court consent for abortions for girls 15 and under.
* The signing of a pre-abortion "informed consent" affidavit by women of all ages certifying that their doctor has described the fetus "in [anatomical] detail" to them and declared that it "is a human life from the moment of conception."
* Criminal penalties for doctors and others who violate these requirements.
* Hospitalization for all abortions after the first three months (first trimester) of pregnancy rather than treatment on an outpatient basis.
In response to a challenge by the American Civil Liberties Union and the Akron Center for Reproductive Health, the 6th U.S. Circuit Court of Appeals struck down all but the hospitalization requirement as "unduly burdensome" on women's right to obtain abortions. Consequently, the law has never been enforced.
The Missouri case stems from a decision of the 8th U.S. Circuit Court of Appeals striking down as unconstitutional a hospitalization requirement, similar to Akron's, enacted by Missouri in 1979. The justices will have to settle that split between the appellate courts.
The Supreme Court will also be considering Missouri's parental consent requirement for women under 18 (upheld by the appellate court), and its provision, struck down by the court, requiring a second physician during abortions on "viable" fetuses.
The Virginia case is the only one involving an actual criminal prosecution. Dr. Simopoulos was charged in 1979 with providing an illegal abortion to a 17-year-old high school girl who was 22 weeks pregnant.
Simopoulos said the girl came to him because only two Northern Virginia hospitals would perform second-trimester abortions and both required parental consent. He administered a saline abortion, gave her a prescription and told her to go to a hospital for followup. Instead, she went to a motel where authorities found the fetus in the trash.