While David H. Souter was New Hampshire Attorney General, his office filed a brief defending the state's refusal to pay for abortions for poor women that described abortion as "the killing of unborn children."
The brief, filed in 1976 in the federal appeals court on which the Supreme Court nominee now sits, argued that the state should be allowed to not fund abortion because "many thousands of New Hampshire residents find the use of tax revenues to finance the killing of unborn children morally repugnant."
The brief was unearthed by People for the American Way, one of the liberal lobbying groups that has been hard at work researching Souter's record in an effort to determine his position on a number of controversial issues, particularly abortion.
Although the document had Souter's name on it, it was actually signed by one of his assistants, Richard V. Wiebusch, who said in an interview yesterday that Souter did not participate in the drafting of the brief, instruct him about what arguments to make or what language to use, or review the brief before it was sent out.
"I don't recall that he had any substantial involvement in the case," Wiebusch said of Souter's role. The appeals court struck down the New Hampshire regulation but the Supreme Court has since upheld funding denials for poor women seeking abortions.
Elliot Mincberg, legal director of People for the American Way, said Souter should be asked about the issue at his confirmation hearings in September because it used a "code word for those who are against abortion." Kate Michelman, executive director of the National Abortion Rights Action League, described the brief as "profoundly alarming."
Rebecca Hagelin of Concerned Women for America, which opposes abortion, said the language of the brief "raises my level of respect for him as a man but it tells me absolutely nothing about Judge Souter as a Supreme Court justice."
President Bush, meanwhile, pressed his argument that the Senate not let "some simplistic" issue dominate Souter's confirmation hearings and predicted the nominee would bring "experience, informed impartiality and an admirable moral compass" to his work on the nation's highest court.
"We can't even imagine the variety and the complexity of the decisions that the next Supreme Court is going to make," he told representatives of the Youth Leadership Coalition. "And that's why we can't choose a justice based on some simplistic -- they call it litmus test -- on one issue or another. It's a much broader responsibility." '