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  One Judge and the Shaping of Abortion Law

By Spencer S. Hsu
Washington Post Staff Writer
Thursday, July 2, 1998; Page A1

Just before midnight Tuesday, a federal judge reversed a lower court ruling and so preserved -- at least for now -- Virginia's new ban on late-term, "partial birth" abortions. The state attorneys defending the law had sought out a judge who they thought wouldn't disappoint them, and J. Michael Luttig came through.

Luttig, a 44-year-old federal appeals judge from McLean known for his conservative philosophy, rejected a District Court judge's ruling that the Virginia ban was too vague and likely unconstitutional.

Luttig's ruling -- which abortion rights advocates said they will appeal -- put the 4th U.S. Circuit Court of Appeals in conflict with courts in all 17 other states where bans on the late-term procedure have been challenged.

He dismissed the lower court's contention that Virginia's law could be interpreted as a ban on abortions during the first six months of pregnancy and that it is unconstitutional because it does not include a clause guaranteeing a woman's right to a late-term abortion if her health is at risk.

The "undisputed purpose" of Virginia's ban, Luttig said in his 18-page opinion, is to bar any procedure in which a physician delivers a fetus, ruptures its skull and then dislodges it from a woman's body -- a method of abortion that Virginia clinics challenging the ban say they do not use.

Luttig's ruling came one year to the day after he issued a similar ruling that allowed the state to require teenagers to notify a parent before having an abortion, a statute that is still under challenge before the circuit.

The story of how one judge has become such a key player in shaping abortion law in Virginia is in part a reflection of court rules that have allowed the state's Republican attorneys general to steer such cases to him.

But it also shows how Luttig's close relationships with U.S. Supreme Court Justice Antonin Scalia and former U.S. chief justice Warren E. Burger -- Luttig clerked for both of the conservative jurists -- have influenced him. According to a profile last year in American Lawyer magazine, Luttig has become a "nationally recognized jurist and spokesman for a conservative judicial philosophy who stands poised to shape case law well into the next century."

That's just the type of judge state attorneys were looking for this week when they were seeking to reverse the District Court injunction that blocked the new Virginia law.

Under 4th U.S. Circuit Court rules, appellants in "emergency" cases -- those that involve some type of deadline -- can choose to have their appeal heard by a single judge, rather than the usual three-judge circuit panel.

On Monday, 4th Circuit Court clerks said, Deputy Virginia Attorney General William H. Hurd's office contacted Luttig's court and said the state would send the judge an appeal to preserve Virginia's law the next morning. Abortion rights advocates protested and sought a three-judge appeals panel, but Luttig declined.

"Judge Luttig is very scholarly, and he is a judge with a very self-evident respect for the federal system," Hurd said in explaining his selection.

Critics of Luttig's ruling on the procedure that antiabortion activists call "partial birth" abortion were dismayed that the judge's opinion did not mention Roe v. Wade, the landmark 1972 Supreme Court decision that guaranteed a woman's right to have an abortion.

But other critics who have followed Luttig's rulings weren't so surprised. They see him as a crusading conservative jurist who opposes abortion, supports the death penalty and is a literal interpreter of the Constitution.

"At least on the conservative front, he is the leader of the [4th Circuit] court," said Cornell University Law School professor John H. Blume, a death penalty opponent.

Blume's study of the 4th Circuit's rulings indicates that since his appointment in 1991 by President George Bush, Luttig has never sided with a capital murder defendant in 23 cases. Some defense lawyers have suggested that this is connected to his father's murder in Texas during a 1994 carjacking.

"He tries to push the law toward a more conservative bent, hoping the Supreme Court will take these cases," Blume said.

Some defense lawyers have argued that Luttig should recuse himself from certain murder cases, but Luttig has declined.

In legal papers he has written since his father's slaying, Luttig said his impartiality should not be questioned any more than that of jurists who have been victims of race or sex discrimination and yet hear such cases.

Luttig declined to be interviewed for this story. But interviews with former college classmates, court clerks, mentors and friends and Luttig's own opinions flesh out the beliefs of a judge who is seen by some conservatives as a rising judicial star.

His supporters say Luttig's rulings typically are densely reasoned, strictly literal constructions of the law, in the spirit of his mentors, Burger and Scalia.

"Mike is not a politician," said Fred F. Fielding, the former Reagan White House counsel who hired Luttig out of the University of Virginia law school in 1981 at the recommendation of his friend Burger. "He's a very careful, very deliberate . . . judge."

Thurgood Marshall Jr., an assistant to President Clinton and son of the former Supreme Court justice, attended law school with Luttig. He recalled that Luttig was virtually a member of Burger's family and delivered a moving eulogy at the chief justice's funeral.

But Luttig's career has not been free of controversy or political intrigue.

In 1991, he was criticized by legal ethicists for helping prepare Supreme Court nominee Clarence Thomas for hearings into sexual harassment allegations raised by Anita F. Hill. At the time, Luttig was a senior Justice Department official who had been confirmed by the Senate to the appeals bench and was waiting to be sworn in.

In 1990, Luttig was the Bush administration official charged with providing a "safe house" for eventual Supreme Court Justice David H. Souter before his confirmation hearings.

"He is a perfectionist," said Tim Flanigan, who followed Luttig at the high court and as assistant U.S. attorney general for the Office of Legal Counsel.

"His approach is a judicial literalist approach," said Flanigan, a close friend who is writing a biography of Burger. "There are many who . . . say a judge's job is more than that. I happen to think Mike has it right."

© 1998 The Washington Post Company

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