Souter addressed abortion issue in one case

CONCORD, N.H. — David Souter, who undoubtedly faces questions about abortion now that he’s been nominated for the U.S. Supreme Court, has participated in one major ruling on the issue.

The matter comes up rarely in the New Hampshire Supreme Court, but it did in 1986, when Souter served on the state’s highest court.

In a lawsuit against a doctor, a woman alleged that the physician failed to advise her of the possibility that the measles she contracted during pregnancy would result in birth defects for her baby.

After the child was born with multiple birth defects, the mother sued, arguing that she should have known of the possibility and been counseled about abortion.

The court ruled that it has no business deciding whether such a child would be better off aborted by its mother. But it did rule that the parents of children with birth defects have a right to sue.

It also held that doctors have a responsibility to test for birth defects and inform pregnant women of the possibility of defects to give them the option of abortion.

“We recognize that the termination of pregnancy involves controversial and divisive social issues,” said the opinion with which Souter agreed. “Nonetheless, the Supreme Court of the United States has held that a woman has a constitutionally secured right to terminate a pregnancy.”

Souter, named Monday by President Bush to succeed William J. Brennan on the nation’s highest court, agreed with the ruling, and raised an additional question in a concurring opinion.

The 50-year-old Souter, who was placed on the 1st U.S. Circuit Court of Appeals earlier this year by President Bush, wondered what impact the ruling might have on doctors who oppose abortion, but who were bound to advise patients of it as an alternative. The court did not rule on that issue.

“The court does not hold that some or all physicians must make a choice between rendering services that they morally condemn and leaving their profession in order to escape malpractice exposures,” he wrote.

He suggested that one argument might be that such doctors could tell patients of their religious or moral scruples and refer them to other doctors in time for such testing.

James Duggan, head of the state’s public defender program, said he does not know how Souter would vote on abortion. But, he said, Souter as a judge has traits that might have caused him to vote against the 1973 Roe vs. Wade decision that legalized abortion, yet hesitant to overrule it now.

“He interprets rights as they are written and interprets the powers of government as they are written,” Duggan said.

“There is no doubt that you would have to read a lot into the text of the Constitution to find the kind of substantive rights that Roe announced,” namely, the right to have an abortion, he said.

“From that point of view, Roe v. Wade would be inconsistent with his general approach,” he said. “I think he would have dissented from Roe v. Wade, but whether he would be prepared to overrule it now, after the court has built on it and decided a lot of cases on it, is a different question.”