Rehnquist Death Could Impact Supreme Court Abortion Law Decision

State   |   Steven Ertelt   |   Sep 6, 2005   |   9:00AM   |   WASHINGTON, DC

Rehnquist Death Could Impact Supreme Court Abortion Law Decision

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by Steven Ertelt Editor
September 6, 2005

Washington, DC ( — The death of pro-life Chief Justice William Rehnquist could impact the Supreme Court’s decision on a New Hampshire law requiring abortion businesses to tell parents there when their minor daughter is considering having an abortion. The high court is expected to hold a hearing on the case during its upcoming term.

Before Rehnquist passed away and pro-abortion Justice Sandra Day O’Connor announced her retirement, the court was expected to side 5-4 in favor of the law. O’Connor, considered a swing vote on some abortion issues stepped down, and political observers believed nominee John Roberts would likely vote to uphold the law.

Now that President Bush has elevated Roberts’ nomination to replace Rehnquist, O’Connor will stay on the court until the Senate confirms someone to replace her. Her support of the New Hampshire law is more questionable and no one knows who Bush will replace her with, when he will make that appointment and whether the Senate will confirm that nominee.

Oral arguments in the case are set for November 30.

The president hopes to have Roberts confirmed by the end of September, in time for the start of the court’s term. Theoretically, Bush would appoint a new nominee shortly thereafter and the Senate would hold hearings on and vote on the nomination during October and early November — putting the new jurist in place by the time the hearings roll around.

However, if that timetable doesn’t work out, O’Connor could be on the court in time for the hearings, but not around when the justices take a vote later in the term. Should the court vote 4-4 on the case, the tie would defer to the lower court’s decision and the pro-life law would be overturned.

Roberts, should he be confirmed, could also find himself in the position of asking a new jurist to listen to taped arguments, reading the legal papers and casting a vote. Meanwhile, Roberts could order new hearings to allow the new judge to participate in the case from the beginning.

Kent Greenfield, a Boston College law professor, says the timing and the person who replaces O’Connor could have a huge impact on the outcome of the case.

"A Rehnquist-for-Roberts switch is not that big of a switch, so now the replacement for O’Connor becomes the big potential change, and that of course turns on the politics ," Greenfield told the Associated Press.

"It will turn on whether (President Bush) feels he’s got the political will and the political power to force through a big conservative," Greenfield said.