The Reagan administration, injecting itself for the first time into an abortion controversy before the Supreme Court, yesterday asked the justices to expand the authority of state and local governments to pass restrictive anti-abortion laws.
Solicitor General Rex E. Lee, in a "friend of the court" brief, said it was now time for the court to "tilt" the power to regulate abortions, including those in the first three months of pregnancy, toward elected officials and away from the courts.
The brief asked the court to uphold laws currently under review from Missouri and Akron, Ohio. Both place hurdles of varying difficulty between women and abortions. The most stringent, the Akron ordinance, imposes a 24-hour waiting period on women seeking abortions, requires parental consent for abortions on women under 15 and makes doctors, under threat of imprisonment, inform the patient that the "unborn child is a human life from the moment of conception" and describe "in detail" its anatomical appearance.
The brief, which Lee said was approved by the White House but was initiated by his office, challenged one of the basic assumptions of the Supreme Court's 1973 ruling legalizing abortion--that abortions in the first trimester should be freely available. But the government expressly avoided challenging the ruling in Roe v. Wade itself.
The action nonetheless pleased conservative leaders. "We've been saying for 10 years that a court shouldn't be legislating," said Dan Donehey, a spokesman for the National Right to Life Committee. "This is the product of a pro-life administration." Moral Majority leader Jerry Falwell said, "It's good to have the federal government on the side of the unborn."
Justice Department officials described the brief as nonpolitical. But they took full political advantage of it yesterday. Associate Deputy Attorney General Bruce Fein telephoned New Right leader Paul Weyrich with the news just as Weyrich and Falwell were holding a press briefing at their own "Family Forum II" conference in Washington. Falwell interrupted the press briefing to make the announcement. Fein said the call was "nothing unusual . . . a matter of courtesy."
Janet Benshoof, an American Civil Liberties Union lawyer challenging the Akron law, said it was "a blatantly political brief" which, if adopted by the court, would "completely undermine" the 1973 ruling.
The Missouri case stems from a decision by the 8th U.S. Circuit Court of Appeals in which a requirement that abortions after the first three months be performed in a hospital was struck down as unconstitutional. A similar statute, enacted in Virginia, is also before the Supreme Court, though the government took no position on it yesterday.
The Akron City Council passed its law in 1978, patterning it after a national "model" drawn up by right-to-life activists. The 6th Circuit Court of Appeals struck down most of the first trimester requirements but upheld a hospitalization regulation similar to Missouri's.
The government's brief yesterday did not turn on the facts of the laws, however. Instead, Lee said the courts should formulate a standard for reviewing abortion cases which interferes only with the most burdensome restrictions and accords "heavy deference" to legislative judgments.
The combatants in the abortion controversy will "never agree" on how far government can go, Lee told the court. But "some governmental entity must make a choice between the two competing positions. In our democratic society, the governmental body with the primary authority and responsibility to resolve competing policy views and pressures among citizens is the legislature," he wrote, which is better equipped to sift through competing public policy issues and is "directly responsible" to the electorate.
Putting issues in the courts removes them from "the realm of public debate and decision-making," Lee wrote. While the courts must safeguard constitutional rights, "the fact that this court has declared that the abortion decision is a fundamental right does not, in itself, justify far ranging judicial preemption of state or federal legislation impacting upon that decision. The time has come to call a halt" to that preemption process, the brief said.