Supreme Court Case is John Roberts’ First Opportunity to Address Abortion

National   |   Steven Ertelt   |   Nov 29, 2005   |   9:00AM   |   WASHINGTON, DC

Supreme Court Case is John Roberts’ First Opportunity to Address Abortion Email this article
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by Steven Ertelt Editor
November 29, 2005

Washington, DC ( — It’s not the first abortion case to head to the Supreme Court under the watch of new Chief Justice John Roberts, but it will be the first opportunity he has to shape public policy about it.

Earlier, the Supreme Court unanimously turned back a request by Missouri prison officials who did not want to provide transportation for an inmate to have an abortion. That case was seen as a deference to lower courts and not a shaping of abortion public policy.

However, with the case the high court plans to hear Wednesday, regarding a New Hampshire parental consent law, it’s the first opportunity for Roberts and the high court to weigh in on abortion since 2000.

Mathew Staver, president of Liberty Counsel, a pro-life law firm, says the court’s decision "could either open the floodgates or shut them when it comes to abortion litigation."

The case is also a first glimpse into how Roberts will rule on abortion matters and whether he will follow the same decidedly pro-life view of abortion law of his predecessor, Chief Justice William Rehnquist.

The case could also show whether any other justices have moved on the issue of abortion.

Though there have been other decisions that haven’t affected abortion policy greatly, it’s the first significant case since the Supreme Court overturned a Nebraska partial-birth abortion ban in 2000 and just the second key case since the courts 1992 decision upholding some Pennsylvania pro-life laws but reaffirming its pro-abortion decision in Roe v. Wade.

Douglas Kmiec, a law professor at Pepperdine University, says Justice Anthony Kennedy could prove to be a crucial vote.

Kennedy voted to uphold Roe v. Wade in 1992, but also joined the minority in 2000 to uphold the partial-birth abortion ban, saying a health exception was unnecessary.

A health exception is a crucial component to tomorrow’s case as Planned Parenthood argues New Hampshire’s parental notification law is unconstitutional without it.

"The case turns on Kennedy,” Kmiec said in an interview with Bloomberg News. "I don’t think Justice O’Connor will be present when the court’s decision is issued. So her vote is no longer one that is in the calculus.”

The case could also turn on whether retiring pro-abortion Justice Sandra Day O’Connor is present for the vote or whether nominee Samuel Alito has replaced her. Alito would be more likely to uphold the law and O’Connor may be more likely to oppose it.