The newest member of the Supreme Court will be thrust immediately into the role of potential tiebreaker in a case that could lead to more restrictions on abortions.
Abortion, more than any other issue, hangs over the debate about the court’s future now that Sandra Day O’Connor, the first female justice, has announced her retirement.
Her departure should not at first threaten Roe v. Wade, the landmark 1973 decision that legalized abortion. Besides the moderate O’Connor, five of the eight other justices have endorsed a woman’s right to the procedure.
But O’Connor’s successor will be tested when the court takes up New Hampshire’s parental notification law at the end of the year. The justices decided in late May to hear the case, a little more than one month before O’Connor’s announcement on July 1.
Question of standards
The court will decide whether the law is unconstitutional because it lacks an exception allowing a minor to have an abortion to protect her health in the event of a medical emergency. The case also addresses a potentially broader question: What legal standard should be applied when courts settle challenges to abortion laws?
“There is no doubt the O’Connor successor will control the outcome in this case,” said David Garrow, an Emory University law professor.
He said the court could make it harder for opponents to challenge abortion restrictions by requiring evidence that a law already has obstructed a woman’s right to abortion, instead of an upfront claim that it could. The justices could give states more flexibility to limit abortions, without making an exception for a woman’s health, he said.
Conservatives are urging President Bush to fill the court’s first vacancy in 11 years with a solid opponent of abortion. That would shift the court to the right on abortion and probably other social issues.
Abortion rights: Guillotine or straitjacket?
“The big question is whether they give abortion rights the guillotine or a straitjacket,” American University law professor Jamin Raskin said. “The foundations of the court’s abortion jurisprudence are up for grabs every time the court touches the issue.”
Among current court members, Chief Justice William H. Rehnquist, who also might retire, and Justices Antonin Scalia and Clarence Thomas oppose Roe.
In the last major abortion case at the Supreme Court, O’Connor cast the fifth vote in 2000 that found some state abortion laws must provide an exception to protect the mother’s health. That decision struck down a Nebraska ban on a type of late-term abortions that opponents call “partial-birth” abortions.
In addition, O’Connor is one of four Republican-appointed justices on the court who have voted to uphold Roe. The others are John Paul Stevens, Anthony Kennedy and David H. Souter. Democratic appointees Ruth Bader Ginsburg and Stephen Breyer also are considered abortion rights supporters.
“Republicans have been inept at finding reliable conservatives,” said Lino Graglia, a law professor at the University of Texas.
Some possible Supreme Court nominees, including appeals court Judge Emilio Garza, are on record against Roe. Others, such as Attorney General Alberto Gonzales, have not directly addressed the subject.
Gonzales is opposed by some conservatives because of his 2000 vote, when he was on the Texas Supreme Court, to let a 17-year-old girl seek an abortion without telling her parents.
In addition to the New Hampshire parental notification case, a second abortion issue will reach the Supreme Court soon.
Last week, the 8th U.S. Circuit Court of Appeals in St. Louis ruled that the federal law banning a type of late-term abortions is unconstitutional.
Bush signed the law in 2003 but it was not enforced because of legal challenges. Several other fights over the same law are also working their way through the courts.
O'Connor brokered compromise in ’92
The last direct challenge to Roe at the high court was in 1992. O’Connor helped broker a compromise that upheld a woman’s right to abortion, while allowing state restrictions that do not impose an “undue burden” on women.
At the time, Scalia, whom Bush has cited as a model for the type of justice he would like to nominate, said the compromise had an “epic tone (to) suggest that its authors believe they are bringing to an end a troublesome era in the history of our nation and of our court.”
“Quite to the contrary ... by continuing the imposition of a rigid national rule instead of allowing for regional differences, the court merely prolongs and intensifies the anguish,” Scalia wrote.
Without O’Connor, it is unclear whether the compromise would hold.