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Justice Department Declines To Make Oral Argument On Minnesota Abortion Law

September 23, 1989

WASHINGTON (AP) _ The Justice Department declined Friday to seek permission to make an oral argument during the Supreme Court’s consideration of a Minnesota law resticting abortions for teen-agers.

The decision to forgo oral argument appears to signal that the department will not use the Minnesota case as the occasion to renew its argument that the landmark 1973 abortion-rights decision be overturned.

Justice Department spokesman Daniel Eramian said the Bush administration still has as a legal goal the overturning of that decision, Roe v. Wade.

But Eramian said ″it’s premature″ to say if the brief Solicitor General Kenneth Starr still plans to file in the Minnesota case will address that issue.

Eramian said the department intends to join the attorney general of Minnesota in defending the law, which requires teen-agers to obtain the permission of parents - even those not a part of their lives - to get an abortion.

But the Minnesota case may not present the best opportunity for the Justice Department to continue its argument that the high court should overturn Roe v. Wade, said a department source, who spoke on condition of anonymity.

The solicitor general, often called the 10th justice in legal circles, must be careful to preserve his special relationship with the high court by not pressing legal arguments that have been freshly rebuffed by the justices, the source said.

It could be insulting to the justices if the Justice Department quickly returns to the Supreme Court to raise the same legal point that the court rejected in July when the justices refused to overturn Roe v. Wade, the source said.

The Justice Department specifically urged the high court to use the Missouri case to overturn the 1973 precedent, a request made in oral argument by former Solicitor General Charles Fried.

The high court in that case held that the Missouri law did not run afoul of Roe v. Wade, and therefore the 1973 precedent was left intact even though the statute prohibited abortions in state facilities or in hospitals on state land.

Because it involves a law restricting the rights of teen-agers, Hodgson v. Minnesota does not deal as squarely as the Missouri case with the fundamental issue of a woman’s constitutional right to abortion.

The fact that the Minnesota attorney general is not seeking to overturn Roe v. Wade in his argument before the court may also be a factor in the Justice Department’s reasoning.

The abortion-rights issue is a politically vexing one for President Bush, who has shifted his stance from pro-choice to anti-abortion in the last decade.

Political polls taken since the Supreme Court’s ruling in the Missouri case, show that restricting abortion rights is not popular.

A poll commissioned by the Wall Street Journal and NBC News released Friday showed that 46 percent of those surveyed would vote or would be likely to vote for a pro-choice candidate while 28 percent would support an anti-abortion candidate. The poll indicated that young voters were pro-choice by a 2-1 margin.

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