A Sampler of Souter's Views

As a superior-court judge in 1981, Souter urged the state legislature to reject a provision in a bill that would have required teenagers seeking + abortions to get permission from a judge if they could not obtain their parents' consent:

((The provision)) would express a decision by society, speaking through the legislature, to leave it to individual justices . . . to make fundamental moral decisions about the interests of other people without any standards to guide the individual judge . . . There are some judges who believe that abortion . . . is morally wrong, who could not in good conscience issue an order requiring an abortion to be performed. There are others who believe that what may be thought to be in the "best interests" of the pregnant minor is itself just as necessarily a moral as a social question, upon which a judge may not morally speak for another human being, whatever may be that judge's own personal opinion about the morality of abortion. Judges in each category would be obligated to indicate that they could not exercise their power in favor of authorizing abortions to be performed on immature pregnant minors. The inevitable result would be required shopping for judges who would entertain such cases.

In 1986 the New Hampshire Supreme Court unanimously upheld a woman's right to sue her doctor for failing to inform her that a case of German measles while she was pregnant put her in grave risk of having a child with serious birth defects. The woman contended that if she had received information from her doctors about the potential for birth defects she would have had an abortion. In a separate concurring opinion Souter raised an issue that the full court did not address:

The trial court did not ask whether, or how, a physician with conscientious scruples against abortion, and the testing and counseling that may inform an abortion decision, can discharge his professional obligation without engaging in procedures that his religious or moral principles condemn . . . The court does not hold that some or all physicians must make such a choice between rendering services that they morally condemn and leaving their profession in order to escape malpractice exposure. The defensive significance, for example, of timely disclosure of professional limits based on religious or moral scruples, combined with timely referral to other physicians who are not so constrained, is a question open for consideration.

Writing for a unanimous state supreme court in 1988, Souter overturned a rape conviction on the ground that the trial judge should have allowed the defense to introduce evidence about the victim's allegedly provocative behavior in the moments before the assault:

Describing a complainant's open, sexually suggestive conduct in the presence of patrons of a public bar obviously has far less potential for damaging the sensibilities than revealing what the same person may have done in the company of another behind a closed door. On the other hand, evidence of public displays of general interest in sexual activity can be taken to indicate a contemporaneous receptiveness to sexual advances that cannot be inferred from evidence of private behavior with chosen sex partners . . . The facts of this case well illustrate the court's previous observation that the sexual activities of a complainant immediately prior to an alleged rape may well be subject to the defendant's constitutional right to present evidence.