Four Big Decisions

By GEORGE J. CHURCH

High court rules on abortions, race quotas, open trials, safety rules

Sooner or later the most complex and explosive emotional issues in U.S. society come before the Supreme Court. Rarely, however, has the court handed down so many decisions of such importance as it did last week. In a mere three days at the end of its 1979-80 term, the court settled cases involving the angrily disputed questions of abortion, racial quotas, freedom of the press, and the right of federal regulators to impose heavy financial burdens on business in the interest of worker safety.

The Justices ruled:

> That Congress and the states may refuse to pay for abortions sought by poor women, even when doctors deem the abortions to be "medically necessary." The vote: 5 to 4.

> That Congress may require 10% of the money spent on a federally funded public works program to go only to contracting firms controlled by members of racial and ethnic minority groups. The vote: 6 to 3. > That judges must open all criminal trials to the press and public, except under special circumstances, such as when public attendance might jeopardize the fairness of the trial. This was the high court's first assertion of a constitutional basis for the press's "right of access" to important public information. The vote: 7 to 1.

> That a regulatory agency could not force companies to reduce the amount of benzene in the air breathed by workers if it merely believed, without proof, that this action would safeguard the workers' health. The ruling implied that regulators could not free a workplace of all risks to health and should not try. The vote: 5 to 4.

Momentous as these decisions were, they were announced with little ah" of drama. On Wednesday, when the final three decisions came down, some two dozen reporters jammed the basement pressroom of the Supreme Court building and grabbed for copies, prompting a court employee to snap: "Behave!" But upstairs in the ornate red-draped courtroom, the tourists who occupied most of the seats had little idea what was going on. The black-robed Justices referred to the cases by their uninformative docket names (the quotas case, for example, was identified as Fullilove vs. Klutznick), and Chief Justice Warren Burger announced two of the decisions by droning, "We affirm . . . We reverse."

The importance of the stakes, however, was underscored by the extraordinary vehemence of some of the dissenting opinions. In the abortion case, Justice Thurgood Marshall asserted that the majority ruling would drive many women "to back-alley butchers." Justice Potter Stewart chose to dramatize his dissent in the contracting-quotas case by reading it aloud. He accused the court majority in effect of endorsing "racism," and he practically spat out the word. Justice John Paul Stevens added that if race is to be a criterion for receiving public funds, the Government will have to start spelling out who belongs to what race. He bitterly suggested as a model a Nazi law defining who is to be considered a Jew.

On such occasions, court watchers customarily try to ascertain where the court as a whole stands, whether it is moving toward conservatism or liberalism, toward activism or judicial restraint. The only answer is that the court is deeply divided. The four cases decided last week produced a total of no fewer than 22 concurring and dissenting opinions, which filled a total of 345 pages. Even those Justices who agreed on a decision often differed over the reasons for it. Only one opinion was signed by a court majority of five. Two of the decisions, on abortion and benzene, pleased political conservatives, while those on racial quotas and public trials contented many liberals.

The decisions confirmed earlier impressions that the Justices of the Burger Court decide cases on the basis of a painstaking review of the merits of each one rather than by the dictates of any overriding political or judicial philosophy. If there was any general theme to last week's decisions, it was judicial restraint: a tendency to respect the acts of legislators and ancient tradition. In the abortion and quotas cases, the court let bitterly disputed decisions by Congress stand, and in the trials case it stressed an Anglo-American tradition of public trials going back to before the Norman conquest of England in 1066.

The proliferation of opinions causes a certain amount of confusion. "Multiple opinions appear to be the court's modus operandi, "says University of Virginia Law Professor A.E. Dick Howard, "and the bigger the issue the more likely the splintering." Adds Yale Law School Professor Paul Gewirtz: "The splintering reflects a breakdown of institutional cohesion and purpose, and creates all sorts of problems for lower courts and other branches of government who need guidance."

The complexity of the cases helps explain the splintering, however, and it is hardly unique to the Burger Court. The tremendous work load and end-of-term rush to judgment leave little time for collegiality. Nor are the divisions necessarily bad. Says Stanford Law Professor Gerald Gunther: "I disagree with the assumption that the country is best off with Justices who have a simple, predictable framework. More often than not those courts have been wrong."

If the court is divided and groping over questions like abortion and affirmative action, so is the country. And while it is difficult to predict what the court will do in general "liberal" or "conservative" terms, the voting records of the individual Justices are quite consistent. For instance, Justice Stewart usually votes liberal on criminal rights, conservative on race; Byron White votes just the other way. The only truly fickle Justice is the Chief Justice. He likes to be in the majority.

The four decisions in detail:

Abortion This is possibly the most flaming political-legal issue in the nation. Since the Supreme Court ruled in 1973 that a woman has a constitutional right to an abortion, at least in the early stages of pregnancy, the battle has come to focus on the question of whether federal and state governments have an obligation under the Medicaid program to pay for abortions performed on women who are too poor to pay. (The cost of the operation averages about $200.) In 1977 the court decided that there was no constitutional obligation if there was no compelling medical reason for the operation.

Nine months earlier, Congress had gone much further and enacted the Hyde Amendment, named after Henry Hyde, a Republican Congressman from Illinois. In its latest form it forbids federal funding for any abortions, except those necessary to save a woman's life or those performed on victims of promptly reported rape or incest. Last January, New York Federal District Court Judge John Dooling found the Hyde Amendment unconstitutional. Since the Federal Government helps states pay for almost all other medical services required by the poor, he reasoned in part, it cannot refuse to pay for abortions.

Not so, said Justice Stewart last week, in an opinion joined by four of his colleagues. The Government, Stewart said, does not have to pay to help the poor exercise their constitutional rights: it did not create their poverty and so has no constitutional obligation to help relieve it in this field. The Supreme Court has ruled, he reasoned, that Americans have a constitutional right to use contraceptives and to send their children to private schools, but "it cannot be" that the Government must buy contraceptive devices for the poor or pay private-school tuition for their children. Nor does the fact that Congress has chosen to pay other medical bills of the indigent create an obligation to pay for abortions too. "Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life," said Stewart, and the Government has an interest in protecting potential life.

Stewart also rejected the argument that restrictions on abortion force women to observe the doctrines of particular religious faiths. Said he, with a touch of casuistry: "That the Judaeo-Christian religions oppose stealing does not mean that a state or the Federal Government may not . . . enact laws prohibiting larceny." The court majority, Stewart emphasized, was not declaring the Hyde Amendment to be wise social policy--if it did, "not every Justice who has subscribed to the judgment of the court today could have done so"--but only that Congress did not violate the Constitution by enacting it.

Justices Marshall, Stevens, William Brennan and Harry Blackmun wrote four separate dissenting opinions. But all agreed that the court majority was permitting Congress to deny poor women the constitutional right to an abortion, which the court itself had said all women possess. The Government, said Stevens, must govern impartially. He condemned the Hyde Amendment as "an unjustifiable, and indeed blatant, violation" of that duty.

Marshall and Blackmun, in addition, accused the majority of dry legalistic reasoning that ignores the real world in which poor women live. Marshall listed some of the alternatives open to an indigent woman who must pay for an abortion herself: "not paying rent or utility bills, pawning household goods, diverting food and clothing money" and even outright theft.

The practical effect of the court's decision may be less than suggested by the impassioned advocates on both sides. Even before Congress placed any restrictions on Medicaid abortions, the U.S. helped pay for only 300,000 abortions a year--fewer than a quarter of the roughly 1.4 million performed annually. The Hyde Amendment cut the number of federally funded abortions to only 2,000 annually. Yet abortion supporters estimate that two out of every three indigent women who wanted abortions still got them, some because they managed to come up with the money.

Many other women received free abortions in 22 states and the District of Columbia. Thirteen of these states--including California, where 100,000 free abortions a year were performed--were under orders from lower courts to keep on funding abortions. Those orders are now or will shortly be dissolved. The Supreme Court majority stated explicitly that if the Federal Government does not have to pay for abortions, a state does not either, so most of these states will probably stop providing funding. Nine other states, most prominently New York, have chosen to pay for abortions for the poor even if Washington will not reimburse them. But free abortions will come under attack from triumphant right-to-life advocates in those states too.

Long range, the goal of antiabortion zealots is a constitutional amendment repealing the right to an abortion even for those women who can pay for it. Says Congressman Hyde: "We want to protect the unborn children of the rich and middle class, as well as the unborn of the poor." Nineteen of the 34 states needed have already passed resolutions calling for a constitutional convention to consider some sort of antiabortion amendment, and Hyde and others are trying to drum up the two-thirds congressional majority required to pass an amendment that would then go to the states for ratification. But despite last week's Supreme Court decision, the foes of all abortions have a long way to go. Polls indicate that while the public favors government-paid abortions only by a narrow 48% to 45%, a huge 80% approves the right to an abortion that a woman can arrange privately.

Racial Quotas How far may society go in providing special help --called "affirmative action" by some and "reverse discrimination" by others--to minorities that have suffered from past discrimination? In the celebrated Bakke decision of 1978, the court struck down a fixed racial quota on admissions to the medical school of the University of California at Davis, but said that race could be an element in the university's admissions policy. In last year's Weber de -cision, the court upheld a quota in a private company's employee training program. Left unresolved, however, was the fundamental constitutional question: Does the "equal protection of the laws" guaranteed by the Fourteenth Amendment flatly prohibit government affirmative-action programs? In last week's case, six Justices said no. They upheld a 1977 congressional law that specified that out of $4 billion that the Government proposed to spend in helping states and localities finance public works, at least 10% had to go to contracting firms owned 50% or more by citizens who are, according to the statute's list, "Negroes, Spanish-speaking, Orientals, Indians, Eskimos and Aleuts." Congress could do so, said Chief Justice Burger in the lead opinion, because under the Constitution it has special powers to make up for the effects of past discrimination, powers that go far beyond those possessed by a school board or even a federal judge (who might, for example, order a racial-balance plan in public schools). Burger, joined by Justices White and Lewis Powell, cautioned that special help to minorities must be "narrowly tailored" to remedy proven discrimination and to avoid giving minorities blatant preference. The law in question met those tests, they said, and was flexible. For example, it permitted Government officials to waive the 10% requirement if they could not find enough qualified minority contractors to meet it.

Burger conceded that the law probably caused some white contracting firms to lose business, even though their owners had not practiced discrimination themselves.

But the penalty was mild, he said, since white-owned firms continue to get the vast bulk of the nation's construction business, and Congress can legitimately require innocent whites to "share the burden" of making up for past discrimination so long as that burden is not unreasonable. In a concurring opinion, Justices Blackmun, Brennan and Marshall put less stress on the powers of Congress and more on the general principle that society must, in Marshall's words, promote "meaningful equality of opportunity, not an abstract version of equality in which the effects of past discrimination would be forever frozen into our social fabric."

In dissent, Justices Stewart and William Rehnquist furiously argued that the Constitution permits no discrimination of any kind between races. By the majority's logic, wrote Stewart in the dissent that he read aloud on the day of the decision, "the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race--rather than according to merit or ability." He concluded bitterly: "There are those who think that we need a new Constitution, and their views may some day prevail. But under the Constitution we have, one practice Sin which Government may never I engage is the practice of racism."

The majority decision will cause I no immediate changes, since it I chiefly permits the continuation of I a Government policy, and since ! nearly all the $4 billion authorized under the public works program in question has long since been spent.

But the decision undoubtedly will 1 enormously encourage civil rights I advocates to press affirmative action on all levels of government. A clear majority of six Supreme Court Justices is now prepared to approve at least some such programs.

Public Trials Journalists have long charged that the Burger Court has been progressively cutting down the guarantees of freedom of the press, and their indignation reached a height a year ago, when the court ruled that judges could close some pretrial hearings to press and public. The Justices reasoned that the Sixth Amendment right to a public criminal trial could be waived by a defendant and could not then be invoked by the press. That line of argument obviously seemed to imply that judges could close not only hearings but also actual criminal trials if a defendant agreed. Indeed, only a week after the decision, the Virginia Supreme Court affirmed Judge Richard H.C. Taylor's decision to bar two reporters from a murder trial in a courtroom in Hanover, Va., where Patrick Henry had once orated in defense of freedom. Although several Justices later said publicly that their judgment had been misunderstood, more than 200 instances occurred in which various local judges attempted to bar the press from their courts. Last week a Supreme Court that appeared embarrassed by the consequences of its earlier decision not only overruled Judge Taylor but went on to proclaim a broad "right of access" by the press to criminal trials, and possibly other governmental proceedings as well.

The seven Justices in the majority wrote six separate opinions, but they stressed similar points. In the lead opinion, Burger said that the First Amendment, which the court did not consider in the earlier case, guarantees the press a right to attend and report on trials. True, the First Amendment does not specifically say so. But, said Burger, the right is implicit in the "amalgam of the First Amendment guarantees of speech and press." Anyway, he said, the tradition of open trials goes back beyond the Constitution, to the earliest beginnings of English common law.

Potentially more important even than the trial issue is the court's assertion of a First Amendment right by the press to gather as well as to publish information. "This is a watershed case," said Stevens. "Today. . . for the first time, the court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press."

How far this right may go will take years to determine; the Justices discussed it only in terms of a right to attend criminal trials. But spokesmen for the press jubilantly interpreted it to reach far beyond trials. James Goodale, a lawyer active in First Amendment cases, predicts that reporters will be helped in getting a look at "prisons, small-town meetings, the police blotter" and other places, proceedings and records that have often been closed to the press.

Regulatory Agencies Businessmen have been complaining ever more loudly in recent years that federal regulators are saddling them with expensive and unrealistically stringent health, safety and environmental standards. The Supreme Court last week struck down one such standard set by the Occupational Safety and Health Administration (OSHA), but left unclear just what kind of standard might be legal.

At issue was benzene, a chemical whose vapors are known to be toxic. By the time OSHA was functioning in 1971, the Government and industry had agreed on a benzene standard of 10 parts per million (p.p.m.) in the air in workplaces. OSHA, concerned about new evidence that breathing benzene vapors could cause leukemia, slashed the standard in 1978 to 1 p.p.m. The American Petroleum Institute contended that OSHA was forcing industry to spend $500 million or more to meet a standard that it had not proved to be any safer than the old one.

Four Justices agreed in an opinion written by Stevens. OSHA, they said, had failed to show that there was any significant risk to workers' health at the 10 p.p.m. standard; most of the cancer cases occurred among workers who had breathed much higher concentrations of benzene many years earlier. OSHA took the position that if a substance causes cancer, the agency will set the permitted level in a workplace at the lowest point that can be achieved without bankrupting an industry. But, said the Justices, a "safe" workplace does not mean one that is completely free of risk: "There are many activities that we engage in every day--such as driving a car or even breathing city air --that entail some risk." Before OSHA can set a new standard, they ruled, the agency must produce some kind of evidence that the old one is unsafe and that the new one will in fact reduce the risk to health.

Rehnquist agreed in the decision, but on a totally different ground: he found a section of the congressional act that created OSHA to be unconstitutional. Four dissenters, led by Marshall, protested that OSHA had been conscientiously trying to carry out its mandate to make workplaces safe and healthy.

Charles DiBona, president of the American Petroleum Institute, praised the court ruling as a "landmark decision" meaning that "health regulations in this country must be made on the basis of scientific facts rather than pure speculation." Some experts, however, think that it will not be too difficult for regulatory agencies to produce plausible findings of risk when seeking to set new standards. A far more troubling question is whether they must also demonstrate that the safety benefits of a new regulation are roughly equal to the costs to industry of complying with the rule. The court sidestepped that problem; Justice Powell said OSHA should make such a cost-benefit analysis on benzene, but his colleagues did not address the issue.

Indeed, three of the court's four blockbuster decisions raise questions that will be argued again, some far into the future. If Congress can enact a form of racial quota, how about state legislatures and other local bodies? Two cases, one involving a minority preference among California prison guards and the other a ceiling on the number of blacks admitted to some Chicago high schools in the interest of racial balance, pose a challenge next term.

Test cases probing the dimensions of the press's new right of access to public proceedings are inevitable. And the court next term will hear arguments about OSHA standards on emissions from steel-mill coke ovens that almost surely will raise again the problem of cost-benefit anal -ysis in the acts of regulatory agencies.

In many of its major cases, says Harvard Law School's Laurence Tribe, the court "is dealing with how far government can or cannot go to redress social and economic problems. We should expect these problems to be hard." With a court as divided as this one, that is about the only expectation that is certain to be fulfilled.

by Evan Thomas/Washington

With reporting by Evan Thomas/Washington

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