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 HARRISBURG, Pa., Dec. 9 /PRNewswire/ -- Attempting to persuade the U.S. Supreme Court to hear argument on Pennsylvania's Abortion Control Act as early as April, Attorney General Ernie Preate Jr. filed the state's appeal today -- six weeks earlier than required.
 "As the lawyer representing the governor and defending this statute, that was passed by both houses of the General Assembly, I want this issue resolved as quickly as possible because I believe it will be resolved in favor of my client and our law," said Preate.
 "As I said when we announced our intention to appeal, we believe Pennsylvania's law is constitutional in its entirety, and can be found constitutional without overturning Roe vs. Wade. It is a reasonable, moderate statute, adopted as a compromise measure by a legislature and governor elected by the people."
 "Filing our appeal now, rather than waiting until the Jan. 21 deadline, will, I hope, make it possible for the court to hear the case in April, rather than next fall or even as late as 1993."
 Preate said he was "optimistic" the court would agree to hear the case in April, saying, "the court has accepted fewer cases than usual at this point in its term, so there should be room in the schedule for argument in April."
 At the same time he filed his appeal, the attorney general also filed a brief opposing Planned Parenthood of Pennsylvania's appeal, which was filed previously and which addresses different issues than does the commonwealth's appeal.
 Both sides' appeals to the Supreme Court are a result of the U.S. Third Circuit Court of Appeals' Oct. 21 decision upholding most, but not all, of Pennsylvania's Abortion Control Act.
 Planned Parenthood claimed in its appeal that the Circuit Court's decision constituted an improper attempt by a lower court to overturn a Supreme Court decision, namely Roe vs. Wade. The attorney general argues that the Circuit Court reached its decision "by the routine application of well-established legal principles," a process that does not warrant re-examination by the Supreme Court.
 His brief says the Planned Parenthood appeal petition was "all too obviously constructed more for political than for legal purposes," as evidenced by its "posturing and rhetoric," and should not be granted.
 The Circuit Court said that based on Supreme Court precedents -- specifically the Webster and Hodgson abortion cases -- the appropriate standard for determining whether an abortion regulation is constitutional is to determine whether it imposes an "undue burden".
 Using that test, the Circuit Court three-judge panel found unanimously that key provisions of the act, including parental consent and a 24-hour waiting period to ensure informed consent, were not undue burdens and were, therefore, constitutional. On spousal notification, the panel split, with two of the judges believing it did constitute an undue burden.
 In reaching its decision, the Circuit Court analyzed the positions of each of the Supreme Court justices in all of the recent abortion cases, because there is no one case in which a majority of the justices agree on a single specific standard of review.
 The Circuit Court noted that, while some justices favor granting elected legislatures even more latitude than the "undue burden" test allows, a majority would allow legislatures at least that much discretion to regulate abortion. Therefore, "undue burden" is the appropriate standard of review under current case law, the Circuit Court held.
 The Circuit Court conducted its analysis in accordance with the "well established legal principles" set forth by the Supreme Court in a case called Marks vs. U.S., Preate's brief and appeal state.
 Still, there is a need for further clarification from the Supreme Court itself, Preate's appeal argues. He cites a comment by the Circuit Court judges who said trying to discern the correct application of the undue-burden standard was like trying to "read tea leaves" because the Supreme Court has never spelled out how it should be applied.
 "This is obviously unsatisfactory," Preate's appeal says. "The lower courts, and state legislatures as well, need some surer benchmark to guide them. The (Supreme) Court should review this case ... and attempt to arrive at a new consensus."
 That consensus could be to adopt the "undue burden" test, to adopt a test of whether a given abortion regulation has a "rational basis" -- a standard which would give legislatures more latitude than "undue burden" -- or to overrule Roe altogether, the appeal notes.
 Preate argues that the Pennsylvania statute would pass constitutional muster under any of those approaches.
 In addition to using the case to establish a clear overall standard for reviewing abortion cases, the Supreme Court should hear the Pennsylvania case so that it can determine whether it is constitutional for elected representatives to pass laws requiring that a woman tell her husband prior to getting an abortion, the attorney general's appeal petition argues.
 While the Supreme Court has struck down a Missouri spousal consent provision, it has never addressed a spousal notice provision such as the one Pennsylvania's Legislature enacted, the attorney general points out.
 Pennsylvania's law applies only to married couples and requires only that the husband be told that his wife plans to get an abortion. She does not have to obtain his consent.
 The law waives even the notification requirement for any of four reasons, including fear of an abusive husband. The other three: The woman cannot find the husband, the husband is not the father of the child, or the pregnancy resulted from spousal sexual assault. To invoke an exception, the woman simply signs a form.
 -0- 12/9/91 R
 /CONTACT: Robert R. Gentzel of Pennsylvania Office of Attorney General, 717-787-5211, or home at 717-774-4325/ CO: Pennsylvania Attorney General ST: Pennsylvania IN: SU:

CD -- PG012R -- 0697 12/09/91 16:25 EST
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Date:Dec 9, 1991

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