By CAROL R. RICHARDS
Gannett News Service

ALBANY - The fate of New York's abortion law, which was rejected by the 1972 legislature then preserved by Gov. Rockefeller, was put in the hands Tuesday of the state's highest tribunal, the Court of Appeals.

The constitutionality of the statute permitting abortions up to the 24th week of pregnancyy was challenged by Fordham University law Prof. Robert M. Byrn, who asked to be appointed guardian of all fetuses that could be aborted under the law.

After a lengthy, lively and argumentative hearing of both sides of the issue, the court reserved decision.

Byrn attended the hearing but did not speak. He was represented by Brooklyn attorney Thomas J. Ford, who said "This is an historic moment for the court. For the first time in its history, an unborn child comes before this court asking protection for the most precious right - the right to life."

Byrn's attorney asked that the current law be declared unconstitutional and that an Injunction be granted forbidding abortions except to save the life of the mother.

The court listened attentively to Ford's arguments, but when attorneys on the other side spoke up on behalf of the current law, the questions and arguments began.

When Joel Lewittes of the New York attorney general's office declared that the Issue of whether a fetus has equal protection with a born human being under the law should be determined by the legislature, Associate Judge Adrian P. Burke, 67, of New York City asked whether such legislative discretion wouldn't also then permit legalization of euthanasia, mercy killing.

And Associate Judge John F. Scileppi, 69, of New York, chimed in with: "Why not allow self-destruction after age 65?"

Lewittes responded that the constitution protects the life of born human beings, but the queries and stabs didn't stop there. Before the attorney could pick up his train of argument, Judge Burke said that the legislature didn't make the decision to permit abortions - Gov. Rockefeller did.

The 1970 legislature passed the permissive bill with only just the required 79 votes in the Assembly. The 1972 legislature, which adjourned May 12, voted by small margins in both houses,^, to repeal the law. Gov. Rockefeller vetoed the repealer, leaving the 1970 statute intact.

Scileppi said "It can be argued that the law was not the choice of a vast majority of the people when it passed  in 1970 by only one vote."

Then associate Judge Charles U. Breitel, New York City, said "four votes are good enough in this court."

Lewittes finally concluded that  previous legal cases hold that a fetus is a person under the federal and state constitutions, and that Byrn and his attorneys have the burden of proving the unborn child a "juridical person."

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