Abortion Ruling

An order to pay the poor

Cora McRae, 24, a Brooklyn mother, was pregnant again in 1976 and wanted an abortion. She was poor and went to Planned Parenthood for advice, but was told that the Government could not pay for her operation. In October the Hyde Amendment, which cut off federal funds for all abortions except for pregnancies that endangered a woman's life, would go into effect. But Cora McRae's plight aroused the sympathies of civil rights lawyers, who started a legal battle in her behalf. Last week that battle culminated in a sweeping decision by Brooklyn Federal District Court Judge John F. Dooling Jr. He ruled that the Hyde Amendment is unconstitutional, and he ordered the Government to provide Medicaid funds for any abortion that a poor woman's doctor decides is necessary.

The lawyers first won a preliminary injunction against the Hyde Amendment from Judge Dooling in 1976, and McRae got her abortion. Ten months later, however, the Supreme Court ruled that its 1973 decision guaranteeing a woman's right to abortion did not require the Government to pay for poor women's abortions if they were "nontherapeutic," meaning the woman's health or life was not endangered by pregnancy. But the high court did not rule on whether the state could be required to pay for an abortion that a doctor deemed medically necessary. The list of plaintiffs expanded to include McRae, Planned Parenthood of New York City, and other poor women unable to get abortions.

The plaintiffs called 40 witnesses, and the trial produced thousands of pages of testimony. For 13 months Judge Dooling, 71, a Roman Catholic and father of five, pondered the legal, religious and medical issues. Last week he issued a 642-page document in which he stopped short of ruling that the Hyde Amendment violated the constitutional separation of church and state. But he reasoned that by exempting medically necessary abortions from the comprehensive Medicaid program, the Government violated at least two constitutional guarantees: the Fifth Amendment rights of religious freedom and individual liberty. Dooling called a woman's freedom to terminate her pregnancy for health reasons, "nearly allied to her right to be," a matter "of moral judgment and ultimately religious in origin."

Dooling adopted the language of a Supreme Court ruling to define what constitutes a "medically necessary" abortion: "... a professional judgment for the physician that may be exercised in the light of all factors--physical, emotional, psychological, familial and the woman's age --relevant to the well-being of the patient." Abortion opponents nonetheless criticized the definition as too broad. Said Robert Destro, general counsel for the Catholic League for Religious and Civil Rights: "Judge Dooling's definition of health means anything. He leaves no meaningful distinction between elective and nonelective abortions."

Rhonda Copelon, an attorney for the plaintiffs, called the ruling "a landmark for women, the poor, liberty and the Constitution." If upheld, the decision would strike down the Hyde Amendment, and any comparable state restrictions. But Dooling delayed putting his decision into effect for 30 days to allow right-to-life supporters to appeal it to the Supreme Court.

Even if the Supreme Court does agree with him, the abortion battle is far from over. Antiabortionists have a last resort: an amendment to the Constitution. Although an amendment outlawing all abortions has received little support so far, Dooling's decision could have the unintended result of fueling the movement. Said North Carolina Republican Jesse Helms, the Senate's leading right-to-life proponent:

"His decision has the effect of saying 'no compromise.' It is sure to result in an increase in the efforts of pro-life supporters to elect members of Congress who will pass the human life amendment."

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