Court Returns to Abortion, Other Issues

WASHINGTON — The Supreme Court and its new conservative majority, which recorded a series of smashing victories in the term that ended last July, returns to work today with opportunities to extend state regulation of abortion and to give students the right to gather for Bible reading in public schools.

For the first time, the justices also will grapple with whether the Constitution creates an individual “right to die.”

At the same time, however, the court’s conservative coalition faces a potentially divisive dispute on cases involving business and private property. Despite the court’s conservative bent last year, the court delivered a series of defeats to business. It was, said Stephen Bokat, general counsel of the U.S. Chamber of Commerce, “a horrible term for us.”

And in the term ahead, the justices will have to decide a variety of cases involving aggressive state regulation of business and private property by officials such as California Atty. Gen. John K. Van de Kamp.

On the abortion issue, most legal experts predict more of the same in the new term, with the five conservatives joining to give more regulatory power to the states. On July 3, the final day of the court’s 1988-1989 term, the court ruled in a Missouri case that states may ban abortions in public facilities and may prevent their employees from performing or assisting abortions.

None of the new term’s abortion cases, to be argued in December, call directly for a reversal of the Roe vs. Wade ruling in 1973 that made abortion legal. The states are asking for the authority to impose strict medical standards on private abortion clinics and to require that doctors notify parents before performing an abortion on a teen-ager.

May Be ‘Whittled Away’

“There seems less risk of Roe being overruled this year, but a greater chance it will be whittled away,” said Roger Evans, counsel for the Planned Parenthood Federation, a proponent of the right to abortion.

The impact of this term’s three cases could be much more sweeping than the Missouri case, which affected only the relatively few abortions that take place in public facilities.

Two parental notification cases, from Minnesota and Ohio, could have an impact in the 31 states that have enacted laws requiring doctors to notify or gain the consent of a teen-age girl’s parents before ending a pregnancy. Most of those laws, including California’s, have been put on hold during legal appeals.

The third abortion case, from Illinois, may prove to be the most significant of all. The Illinois Legislature passed a series of stringent regulations governing outpatient surgical centers, and opponents of the regulations say that they have forced some abortion clinics out of business and prevented others from opening.

Harassment Alleged

The lawyers who are challenging the regulations charge that the Legislature intended them mostly to harass abortion doctors. They persuaded two lower federal courts to block enforcement of the regulations.

The state of Illinois, which says that the regulations were intended only to assure quality medical care, is asking the Supreme Court to revive them.

The key religion case should finally settle an issue that has arisen in high schools around the nation. School boards and the lower courts have split on whether Bible clubs may meet at school but most lawyers predict that the high court will have little difficulty ruling for the Christian students.

The “right to die” case may prove more troublesome. Since an auto accident six years ago, Nancy Cruzan, 32, has been lying semiconscious in a Missouri rehabilitation center. Although she has no hope of recovery, she may live for decades.

Refuse Starvation Request

Her parents asked that she be allowed to die. State officials, backed by the Missouri Supreme Court, have refused to let her starve to death.

The case poses a particularly difficult issue for the court’s conservatives. Although undoubtedly sympathetic to the parents’ plight, the court conservatives also have been reluctant to declare new constitutional rights that would override state policies.

Thus the right-to-die case has the potential to renew the infighting by the conservatives, which broke into the open on the final day of the last term.

In a series of unusually vitriolic attacks, Justice Antonin Scalia called Justice Sandra Day O’Connor’s go-slow policy on abortion “perverse” and “irrational.” At the same time, Justice Anthony M. Kennedy denounced as “bizarre” O’Connor’s vote to forbid cities from displaying a creche on the main stairwell of City Hall.

Join Liberal Faction

A few weeks earlier, Chief Justice William H. Rehnquist had equally acerbic words for Scalia and Kennedy when they joined with the liberal faction to rule that a flag-burning protester may not be prosecuted.

The harsh tone among the conservatives may signify nothing more than usual end-of-term irritation. But it could also portend a more significant split within the conservative coalition, particularly on issues involving business.

Scalia, a forceful and impatient intellectual, urged his conservative colleagues to take an activist approach toward protecting business and economic interests.

He suggested in June that the court should consider striking down as unconstitutional the Racketeer Influenced and Corrupt Organizations Act, an anti-racketeering law. Earlier, he said that city rent controls may be unconstitutional, and he called for putting new federal limits on multimillion-dollar punitive damage awards in state courts.

Urges Cautious Approach

By contrast, Rehnquist has advocated the more traditional and cautious approach of deferring to decisions made by government. If the voters or their elected representatives enact a regulation--whether of rents, racketeering, billboard advertising, nuclear power plants or abortion clinics--Rehnquist has been inclined to uphold that decision.

The new term will provide the justices with new opportunities to decide whether they should defer to state officials or strike down government regulations that they find excessive or unconstitutional.

Some conservatives and pro-business lawyers hope that the court will take Scalia’s activist approach.

“Scalia and Kennedy were willing to uphold the rights of flag-burners,” said Alan Slobodin of the Washington Legal Foundation. “I just hope they are willing to take the same activist approach to uphold the rights of business interests and property owners.”

Workplace Issue

Among the more than 1,200 appeals that piled up over the summer is one from the owners of a Chicago wire-coating factory who face state criminal charges for allegedly exposing their workers to toxic chemicals. Backed by the Chamber of Commerce, the businessmen say that the issue is off limits to state prosecutors because the federal Occupational Safety and Health Administration has the sole power to regulate the workplace.

“The state’s-rights approach (championed by Rehnquist) is a difficult one for us,” said Bokat, the Chamber of Commerce’s chief lawyer. “Business would rather live with one national rule rather than dealing with a series of liberal state regulators.”

Van de Kamp, who has championed more state regulation of business and the environment, is appealing to the high court to block the merger of the Lucky and Alpha Beta grocery chains in California. In the last term, he won a ruling from the court allowing the state to go beyond federal antitrust laws to combat price-fixing by businesses.

Some court experts predict that the court will continue to uphold state and local government regulations, even when it is business that is on the losing end.

Upholding Legislative Power

“Rehnquist and O’Connor, especially, are inclined to defer to legislative judgments,” said Theodore Olson, a former assistant attorney general in the Ronald Reagan Administration. “They want to uphold the power and authority of the states. That’s the trend, and I think it will continue.”

Despite their occasionally bitter attacks on each other, the court’s five conservatives find much common ground. In the last term, they consistently agreed on cutting back the reach of federal civil rights laws. In one case last year involving affirmative action, they also overturned as unconstitutional a decision by the City Council of Richmond, Va., to set aside 30% of its contracts for black and other minority entrepreneurs.

So far, however, the court has not agreed to hear a major civil rights case in the coming term.

KEY CASES FACING SUPREME COURT The Supreme Court’s key cases in the fall term:

* Can a state require a doctor to notify a teen-ager’s parents before performing an abortion? (Hodgson vs. Minnesota, 88-1125 and Ohio vs. Akron Center for Reproductive Health, 88-805.)

* Can a state require that abortion clinics have all the facilities of a small hospital? (Turnock vs. Ragsdale, 88-790.)

* Can the parents of a comatose daughter permit her to die? (Cruzan vs. Missouri Department of Health, 88-1503.)

* Must public schools allow meetings of religiously oriented students on the same basis as other student clubs? School officials say this would violate the First Amendment’s ban on an “establishment” of religion, but students say they are exercising their rights to the “free exercise” of religion. (Board of Education vs. Mergens, 88-1597.)

* Is California’s capital punishment law unconstitutional because it says jurors “shall” impose a death sentence if they find that the aggravating evidence “outweighs” the mitigating evidence? Laywers for a Death Row inmate say the law is too “mechanical” and does not permit the jurors to be sympathetic. (Boyde vs. California, 88-6613.)

* Can California impose a sales tax on Louisiana evangelist Jimmy Swaggart for selling religious pamphlets, books, T-shirts and other items through the mail? (Swaggart vs. Board of Equalization, 88-1374.)

* Must U.S. drug agents get a search warrant from a U.S. magistrate before searching for drug evidence in a Mexican home? Two federal courts in California said yes, but the Justice Department says such a ruling would needlessly hamper foreign investigations. (U.S. vs. Verdugo-Urquidez, 88-1353.)

* Can the mother of an abused and now missing child be forced to disclose his whereabouts, or may she plead the Fifth Amendment to remain silent? (Baltimore vs. Bouknight, 88-1182.)