Supreme Court Justice Harry A. Blackmun, author of the 1973 decision legalizing abortion, leaned forward, glared down at the solicitor general of the United States and waved the Reagan administration's legal brief asking the court to approve new and stringent restrictions on abortions.
"Mr. Solicitor General, are you asking us to overrule" the abortion decision, he snapped at Solicitor General Rex E. Lee. "It seems to me that you are asking that or you're asking that we overrule Marbury vs. Madison," he said sarcastically, referring to the 1803 case that established the court's right to review legislation and declare it unconstitutional.
"Did you personally write this brief?" he said finally, in a tone of disgust.
"Substantial portions," Lee responded tersely.
It was the dramatic high point of three hours of fervent debate yesterday as the Supreme Court began its most comprehensive review of abortion law since its 1973 decision. The justices questioned the lawyers intensely about new medical procedures, counseling, and safety in the thousands of abortion clinics established across the country since their original ruling.
They focused as well on the Constitution and the relationship between branches of government.
At issue were laws in Virginia, Missouri and Akron, Ohio, that regulate abortions. Virginia successfully prosecuted a doctor for performing an abortion in his clinic, instead of in a hospital as required by state law.
Missouri enacted a law requiring, among other things, that women be hospitalized for abortions after the second three months of pregnancy and obtain parental or court consent if they are under 18.
Akron, in the most far-reaching legislation, imposed among other things a parental consent requirement for women under 15, a 24-hour "cooling-off period" before an abortion at any stage of pregnancy, and an "informed consent" provision forcing doctors to describe in anatomical detail the appearance of the fetus and to tell patients that it is a "human life from the moment of conception."
None of the justices who asked questions yesterday indicated any inclination to revise substantially the 1973 ruling, Roe vs. Wade, as anti-abortion forces had hoped.
In fact, the arguments before the court yesterday revolved around whether the new laws were consistent with Roe vs. Wade, which held that most abortions -- the ones in the early stages of pregnancy -- were a matter of choice between a woman and her doctor.
Akron's lawyer, Alan G. Segedy, said the municipal law, appealed to the Supreme Court after being struck down by a federal appeals court in Ohio, did not rob women of choice.
"The right is not a right to have an abortion," he told the court, "but the right to make a decision: abortion or childbirth." The Akron law helps women make that choice by giving them the information about the fetus, he said.
"The state has an interest in protecting the woman's freedom of choice whether or not to have an abortion . . . . This is not a burdensome law. This is a choice-enhancing law."
The doctor-patient relationship is not disrupted by the Akron ordinance, Segedy added. Rather, the law creates a doctor-patient relationship in abortion clinics where he maintained that none would exist otherwise.
Segedy urged the court to give states and cities more flexibility to impose restrictions on abortions in the first three months of pregnancy. States should not have to show a "compelling" reason for restrictions, he said.
Stephen Landsman, representing Akron abortion clinics challenging the law, pointed out that the ordinance imposes more regulations on women seeking abortions than are imposed on mental patients seeking medical treatment. "It treats women as if they are not to be trusted to know their own minds and to make rational decisions."
"The real purpose of all these statutes," said Frank Susman, representing Planned Parenthood Association of Kansas City, "is to thwart" abortions.
Lawyers defending the hospitalization requirements in all three jurisdictions argued that Roe vs. Wade permitted the hospitalization requirements by saying that in the first three months of pregnancy, the state may regulate abortions in order to protect the health of the woman. Hospitals, rather than abortion clinics, are best able to achieve that, they said.
"But there's no law preventing a doctor from doing brain surgery outside a hospital, is there," said Justice John Paul Stevens. "A doctor could do that at home, couldn't he," he told Deputy Virginia Attorney General William G. Broaddus.
Missouri Attorney General John Ashcroft said there was a "medical debate" about whether abortions were safer in a hospital or in a clinic in the early period of the second trimester. "When a medical debate rages, I think the state ought to have the ability to err on the side of safety."
The Reagan administration entered the cases as a "friend of the court." Lee told Blackmun that the government was not asking now for a reversal of the 1973 abortion ruling. "That issue must await another day," he said. But he said that in reviewing abortion regulations, the courts should more often defer to legislatures, which are better equipped than courts to make such sensitive policy choices.
"At the end of the day, the decisions must be made by the courts," he acknowledged. "But the courts must be mindful of the choices already made" by those elected by the voters. "Balancing" of competing interests is involved in abortion regulation, Lee said. And legislatures "do it the balancing better."
Frank Susman, the lawyer challenging the Missouri law, called Lee's argument a "terrifying thought" that attacks the "very foundations of liberty." It would result in the "bargaining away" of fundamental rights, Susaman said. "A hundred and seventy-nine years of constitutional history would appear to fly out the door."
The cases heard yesterday were Simopoulos vs. Virginia, City of Akron vs. Akron Center for Reproductive Health, and Planned Parenthood Association of Kansas City vs. Ashcroft, Attorney General of Missouri Et Al.