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WASHINGTON--As New Hampshire's attorney general in 1976, Supreme Court nominee David Souter submitted a brief in which the state argued against paying for Medicaid abortions and referred to abortion as "the killing of unborn children."
In an earlier case, argued in 1972 when Souter was the state's deputy attorney general, New Hampshire defended its strict anti-abortion law against a constitutional challenge by arguing: "The maintenance of an unborn child's right to birth is a compelling interest which outweighs any rights of a mother to an abortion except when necessary to preserve her life."
In both cases, the briefs apparently were written by other men and the extent of Souter's personal involvement is unclear. And from neither--one argued before and one after the U.S. Supreme Court's 1973 Roe vs. Wadedecision legalizing abortion--is it possible to determine his personal views on abortion, an issue likely to play a major role in his September confirmation hearings.
New Hampshire's attorney general is appointed by the governor and by law represents him and other state officials in court cases. The state's governor when both abortion cases were argued was Meldrim Thompson, a conservative abortion foe.
Abortion-rights supporters expressed unease with Monday's development, just days after anti-abortion activists showed dismay that Souter had been on the board of a New Hampshire hospital and at a meeting when it voted to allow abortions at the facility.
Senators on both sides of the abortion issue have promised to raise the subject during Souter's September confirmation hearings. Souter is due back in Washington today for more meetings with senators who will consider his nomination to succeed retired Justice William J. Brennan, a strong supporter of abortion rights.
Souter's involvement with the briefs, even if tangential, could provide a way for members of the Senate Judiciary Committee to raise the abortion issue without asking him questions about how he would rule on specific cases.
"Clearly the Senate should ask Judge Souter to address himself to this document at his confirmation hearings," said Arthur J. Kropp, president of the liberal group People for the American Way. Kropp, whose organization on Monday released copies of New Hampshire's fillings in the 1976 case, said the language in them "suggests a clear sympathy for an anti-abortion viewpoint."
Kate Michelman, executive director of the National Abortion Rights Action League, said the "use of rhetoric commonly used by anti-choice extremists is profoundly alarming." She called anew for tough questions on the abortion issue during confirmation hearings.
In the 1976 case, several pregnant women receiving Medicaid help challenged a new state regulation in which the state said it would not pay for abortions unless a woman's life was at risk. The case was first filed in 1975, when Souter was top deputy to Warren Rudman. Souter became attorney general in 1976 when Rudman went into private practice. Rudman, a Republican, was elected to the Senate in 1980.
A federal district court had ordered New Hampshire to pay for Medicaid abortions pending the outcome of the case, but the state appealed that injunction to the 1st U.S. Circuit Court of Appeals in Boston, the court on which Souter now sits.
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