Brief Attack

"When areas are in flux, it is important that the Administration speak out." So said Attorney General Edwin Meese early this month, signaling the Justice Department's intention to take a more activist and aggressive posture toward the Supreme Court and its rulings. Last week Meese's agency took aim at a favorite target of President Reagan and many of his conservative supporters: the landmark 1973 Roe vs. Wade Supreme Court case, which struck down most legal restrictions on abortion. The Justice Department filed a 30-page amicus curiae brief asking the court to reverse its 7-to-2 decision. "The basis for Roe vs. Wade, " states the brief, "is so far flawed and is such a source of instability in the law that this court should reconsider that decision and on reconsideration abandon it."

The friend-of-the-court brief is directed toward two cases to be heard when the court reconvenes this fall. In each case, federal appeals courts had struck down state laws that regulated abortion and imposed constraints on both women and doctors who were contemplating the procedure. The Administration brief holds that states do have the right to control abortion, a persistent contention of right to-lifers, and that there is no explicit constitutional right to abortion.

Critics of the Administration questioned the timing of the action, pointing out that the composition of the court has not changed since 1983, when it handed down three decisions reaffirming Roe. The National Abortion Rights Action League called the filing of the brief "a blatantly political and unprincipled move."

Many of the current elements of the controversy have been swirling around Roe since the case was decided. Most troubling of all to the right-to-life movement was Roe's establishment of the trimester theory of pregnancy, which holds that a government's legitimate interest in the life of the fetus grows as the fetus moves toward viability outside the womb. In her blunt dissent to one of the 1983 decisions, Justice Sandra Day O'Connor wrote that the trimester theory was arbitrary. Said she: "I believe that the state's interest in protecting potential human life exists throughout pregnancy." Right-to-life advocates now say that new medical technology makes the fetus viable at earlier and earlier stages.

Right-to-life organizations responded to the filing of the new brief with cautious approval. It is a "small but important step," said Douglas Johnson of the National Right to Life Committee. Anti-abortion Evangelist Jerry Falwell was more specific: "I feel this is all the Administration can do until a new court is in place. Hopefully there will be two or more court replacements during the next 3 1/2 years."