Interesting Day in Court

People who believe they can accurately predict decisions of the U.S. Supreme Court are usually the sort who also think they can make a living at the race track. This is not to say that useful observations cannot be made about the processes that anticipate both institutions’ final results.

That, of course, is why so much attention has been paid to the questions Justice David H. Souter asked Tuesday, when he and his colleagues heard arguments in Rust vs. Sullivan, the first abortion-related case to come before the high court since Souter’s confirmation.

The case involves a challenge to government regulations that prohibit any discussion of abortion during counseling provided by clinics that receive federal funds under Title X of the Family Planning Services and Population Act of 1970. About 75% of all the nation’s family-planning clinics receive such money. They serve more than 4 million low-income women each year. The plaintiffs assert that the regulations, which were adopted during the Reagan Administration, violate the intent of Congress and the First Amendment rights of the physicians involved, since they are forbidden to mention abortion--even to a woman whose pregnancy threatens her health.

Souter vigorously questioned the government’s lawyer on the latter issue, at one point saying: “You are telling us that a physician can’t perform his usual professional responsibility. You are telling us that the (government) in effect may preclude professional speech.”

None of this is a foolproof predictor of how Souter will vote on Rust or any other abortion case. It should, however, reaffirm resistence to single-issue litmus tests--whether on abortion or any issue--in the appointment or confirmation of judges. Our system ought not extort from judicial nominees a pledge to decide specific cases in a predetermined fashion. What it ought to insist upon is a commitment to open-minded weighing of the merits of the individual case, according to the dictates of conscience, law and the Constitution.

Souter’s obvious willingness to do that, whatever his personal views on abortion may be, is a vindication of this indispensable principle.