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Court Opens Way For Reviving Anti-Abortion Law

June 17, 1996

WASHINGTON (AP) _ The Supreme Court today opened the way for possible reinstatement of a provision of Utah law that makes it harder to get abortions if the fetus could survive outside the womb.

The justices set aside a lower court ruling invalidating the entire law as an undue burden on women’s privacy.

By a 5-4 vote, the court said the 10th U.S. Circuit Court of Appeals wrongly struck down the entire state law after finding most of it unconstitutional.

Utah Attorney General Jan Graham had urged the justices to reinstate at least part of the invalidated state law. That could be the effect of today’s decision, although the ruling itself is a procedural one and does not deal with the substantive issue of abortion.

The high court’s order appears to give Utah officials the option _ pending further court review _ of enforcing that part of the law restricting abortions when the fetus could survive.

The court’s four dissenters said the nation’s highest court should have steered clear of an issue that ``is purely a question of Utah law.″

The dissenters wrote, ``The underlying substantive issue in this case generates what Justice (Oliver Wendell) Holmes once described as a kind of hydraulic pressure that motivates ad hoc decision-making.″

The Utah law, enacted in 1991, was aimed as a direct challenge to the 1973 Roe vs. Wade decision. The state Legislature even provided funding for the anticipated court fight.

The law made any abortion illegal unless necessary to save a woman’s life, prevent ``grave damage″ to a woman’s health, prevent the birth of a child with ``grave defects″ or in cases of rape and incest.

The law eliminated the rape-and-incest exception for pregnancies beyond their 20th week.

A ``choice of method″ portion of the law required that any abortion performed on a fetus that might be viable, or able to live outside the womb, must be done in the way most likely to save the fetus.

Other abortion techniques were allowed only if medically necessary to save a woman’s life or prevent ``grave damage″ to her health.

The law quickly was challenged by abortion providers and others.

U.S. District Judge J. Thomas Greene struck down most of the 1991 law. But he ruled that the choice-of-method regulations were not unconstitutional as written, and could be separated from the rest of the law.

The 10th U.S. Circuit Court of Appeals, however, ruled last August that the choice-of-method regulations were unconstitutional. Even if they were valid, the appeals court said, they could not be saved by severing them from the rest of the Utah law.

Today, the Supreme Court said in an unsigned opinion that the 10th Circuit court was wrong.

The justices said the 10th Circuit court was wrong to second-guess the Legislature’s intent when it ruled that the choice-of-method provision could not be enforced separately from the other parts of the law.

The ruling, which sends the dispute back to the Denver-based appeals court, was issued by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented.

The appeals court had relied on a 1986 Supreme Court decision that struck down a similar Pennsylvania choice-of-method law. The Utah law was ``significantly more burdensome″ than the invalidated Pennsylvania law, the 10th Circuit court said.

In the appeal acted on today, Utah’s Graham argued invalidating the entire state abortion law tramples on Utah’s 11th Amendment immunity against being sued in federal court against its will.

The justices breathed new life into the 11th Amendment in March when limiting Congress’ power to authorize federal lawsuits against the states and their officials by those who accuse them of violating some federally protected right.

That decision was hailed as a major victory for states’ rights.

Today’s decision, however, did not invoke the 11th Amendment. It was more narrowly focused: whether one part of the Utah law survives a finding that another part of it is unconstitutional.

The Utah Legislature passed new abortion legislation in February, signed into law by Gov. Michael Leavitt in March. The new law took effect April 29 and is less restrictive than the one enacted in 1991.

The case acted on today is Leavitt vs. Jane L., 95-1242.

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