Kaiser Daily Women's Health Policy Report Summarizes Articles On New Supreme Court Term, Abortion-Related Cases

The docket for the U.S. Supreme Court term beginning Monday is scheduled to include a Department of Justice appeal to uphold a federal law banning so-called "partial-birth" abortion. President Bush signed the Partial-Birth Abortion Ban Act (S 3) into law in November 2003, but federal judges in California, Nebraska and New York each issued temporary restraining orders to prevent enforcement of the ban. The Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers filed lawsuits alleging that the law is unconstitutional because of the absence of a health exception, and federal judges in California, Nebraska and New York each issued temporary restraining orders to prevent enforcement of the ban. In place of a health exception, the law includes a long "findings" section with medical evidence presented during congressional hearings that, according to supporters of the law, indicates the procedures banned by the law are never medically necessary. The Supreme Court is scheduled to hear arguments in two of the cases on Nov. 8 (Kaiser Daily Women's Health Policy Report, 9/29). Several newspapers recently examined the new Supreme Court session, including the outlook for the two cases on the federal abortion ban. Summaries appear below.

• Christian Science Monitor: Justice Anthony Kennedy is "emerging as a primary centrist power" on the Supreme Court, and his "new judicial clout" will be on display in the federal abortion ban cases and other appeals to be heard during the court's term, the Monitor reports. If Kennedy "sticks to the analysis in his dissent" in the court's 5-4 ruling in the 2000 Stenberg v. Carhart case to strike down a similar Nebraska law as unconstitutional, court experts say the federal law likely will be upheld, according to the Monitor. However, a federal abortion restriction "runs counter" to Kennedy's view of federalism and state's rights, and he could stick to his "strongly held belief" that the court's precedents should be upheld, which likely would mean the federal abortion ban would be struck down, the Monitor reports (Richey, Christian Science Monitor, 10/2).
  

• Los Angeles Times: President Bush's two nominees serving on the court -- Chief Justice John Roberts and Justice Samuel Alito -- will have the chance to "shift" abortion-rights law with their decisions in the upcoming cases, the Times reports. According to the Times, former Supreme Court Justice Sandra Day O'Connor often provided the fifth vote to strike abortion-rights restrictions, and now that she has been replaced by Alito, "the balance may tip the other way" (Savage, Los Angeles Times, 10/2).
  

• New York Times: "[T]here is no escaping the fact" that the court will have to declare whether the federal law is constitutional, which will require justices to "grapple with the meaning" of the Stenberg v. Carhart ruling, the Times reports. According to the Times, the Bush administration will argue that the ruling should be overturned if the federal law "cannot coexist with that precedent" (Greenhouse, New York Times, 10/2). A Times editorial says that Roberts and Alito "should not want to reverse" the Sternberg decision "if they are true to the statements they made at their confirmation hearings about respecting precedent" (New York Times, 10/2).
  

• San Francisco Chronicle: Although few people expect the cases to damage the abortion rights established by the court's ruling in the 1973 Roe v. Wade case -- which effectively barred state abortion bans -- the court's ruling could give "tremendous encouragement to those who would like to see Roe ... overturned," former Supreme Court clerk Edward Lazarus said, the Chronicle reports. According to the Chronicle, the court's term also is likely to test Roberts' "embrace of judicial modesty and humility at his confirmation hearings" in 2005 (Egelko, San Francisco Chronicle, 10/2).
  

• Washington Post: The court's "term will be closely watched not only for the results the court reaches, but for how it reaches them," the Post reports. According to the Post, the court could uphold the federal law as constitutional without overturning the Sternberg ruling because the findings in the federal law "distinguish" it from the Nebraska measure. However, the Center for Reproductive Rights in its brief said the court should not respect the findings of Congress on medical practices (Lane, Washington Post, 10/1).
  

NPR's "Morning Edition" on Monday reported on issues the Supreme Court will consider in its new term, including a challenge to the federal abortion ban. The segment includes comments from James Foreman, professor at Georgetown University Law School and former clerk for former Justice Sandra Day O'Connor; Tom Goldstein, a lawyer who teaches Supreme Court litigation at Harvard University and Stanford University; Michael Paulsen, professor of University of Minnesota Law School; and Kenneth Starr, dean of Pepperdine University Law School (Totenberg, "Morning Edition," NPR, 10/2). The complete segment is available online in RealPlayer. In addition, NPR's "Weekend Edition Sunday" included an interview with Mimi Wesson, professor at the University of Colorado School of Law, about the Supreme Court's new session (Seabrook, "Weekend Edition Sunday," NPR, 10/1). The complete segment is available online in RealPlayer.

"Reprinted with permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation . © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.