Protect upstream waters
THE ROBERTS court can demonstrate its respect for Supreme Court precedents by finding two Michigan developers' intrusions on wetlands in violation of the Clean Water Act and by rejecting a partial-birth abortion ban that includes no exemption for the health of the woman. Yesterday, the court heard arguments on the wetlands cases and agreed to hear an appeal on the abortion law, which three lower courts have found in violation of previous Supreme Court rulings.
At issue in the Michigan cases is whether Congress in the 1972 Clean Water Act meant to protect just ''navigable waters" and abutting streams and wetlands, or the upstream wetlands that feed into them as well. Congressional reports from 1972 make it clear that Congress wanted the law to have the broadest sweep. The Supreme Court reflected that view in 1985 when it ruled unanimously to give the government authority over wetlands in a case similar to the ones before it now. A federal appeals court has ruled against both Michigan developers.
The importance of preserving the Environmental Protection Agency's wide authority in enforcing the Clean Water Act became clear in early 2003 when the Bush administration toyed with the idea of having it and the Army Corps of Engineers relinquish much of their wetlands oversight. The proposal met solid opposition from many of the states, as well as sportsmen's organizations and environmental groups. All understood that a federal pullback would create a regulatory vacuum that could lead to polluted drinking water, reduced protection from floods, and destroyed wildlife habitat. By the end of 2003, the Bush administration wisely decided to drop its proposal.
In the abortion case, the court will hear from supporters of the late-term procedure who say that it is often needed to reduce risk of trauma to the uterus and cervix and that it is the safest method for some women with infections, bleeding or clotting disorders, heart problems, or cancer of the placenta. In 2000, the court struck down a similar law because it lacked an exemption for the health of the woman. The vote in that case was 5 to 4, with Sandra Day O'Connor voting in the majority.
Newly confirmed Justice Samuel Alito, whose record includes several statements critical of the Roe v. Wade decision that legalized abortion, replaced O'Connor. Chief Justice John Roberts replaced the late William Rehnquist, who had voted to uphold the partial-birth abortion ban. In this case and the Michigan ones, the new judges -- and their colleagues -- can do justice to precedence,and to good sense, by upholding the broad interpretation of the Clean Water Act and by rejecting the ban on this rarely used abortion method. 