High court nears flash point on several fronts
The battle over a woman's constitutional right to medically end her pregnancy has convulsed the nation for more than a generation. But since the U.S. Supreme Court's 1992 decision to reaffirm Roe v. Wade, at least one thing has remained constant: If pregnancy threatens a woman's life or health, she can't be prevented from seeking a legal abortion.
That assurance is now on shaky ground. When the U.S. Supreme Court reconvenes next week after its summer break, justices will be asked to decide whether health risks alone should guarantee women access to controversial late-term abortions, typically—though rarely—performed when pregnancies have progressed beyond 20 weeks.
That, in and of itself, is significant—"one of the key cases of the term," says Leonard Leo of the conservative Federalist Society. But the court is also set to consider the constitutionality of Congress's Partial-Birth Abortion Ban Act of 2003, which has no exception for a mother's health. These cases will shine a light on the emerging dynamics of the newly formulated and deeply divided panel. And the most closely watched jurist won't be Chief Justice John Roberts or his fellow sophomore, Justice Samuel Alito, but Justice Anthony Kennedy, on whose vote these decisions will most likely turn.
If one person will define this high court term after last year's unprecedented upheaval (Chief Justice William Rehnquist's death, Justice Sandra Day O'Connor's retirement, and the first new justices in more than a decade), it will be Kennedy. With O'Connor gone, he is the lone swing justice, a moderate conservative whose vote is seen as up for grabs by both the liberal and conservative wings of the court.
"We all live here, but this is Justice Kennedy's world," appellate lawyer Carter Phillips said at a recent court preview. How Kennedy reconciles deference to Congress and its partial-birth ban with respect for stare decisis, or settled law, in the area of women's health is key to the outcome. In the 1992 Planned Parenthood v. Casey decision that reaffirmed Roe, he voted to affirm the right to abortion and required a health exception. But he later wrote an impassioned defense of a Nebraska late-term-abortion ban that lacked one.
Kennedy's vote is likely to figure prominently in other consequential cases justices will hear: A challenge to high school affirmative action programs that use race to assign students, and an effort by states, cities, and environmental groups to force the administration to address global warming.
Court watchers are predicting that, with a split court, Roberts will lead with restraint. Lawyer Thomas Goldstein predicts "slow change." Beth Brinkman, who has argued 20 cases before the high court, is watching to see how both Roberts's and Alito's approach to the law will be affected by careers largely spent in the executive branch.
At 51, Roberts has time to shape his court. "The chief is not thinking about one year," says Neal Devins, law professor and director of the Institute of Bill of Rights Law at the College of William and Mary. "This is a court that's ultimately going to be defined by the 2008 [presidential] election. Rather than get a half a loaf today, he's more apt to make the court less visible now and advance his agenda down the road."
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