Withdrawal delays the retirement of Justice O'Connor

WASHINGTON -- Harriet Miers's withdrawal as a Supreme Court nominee effectively forces retiring Justice Sandra Day O'Connor to remain on the high court longer than anticipated, allowing her to hear upcoming cases dealing with abortion and gay rights. But it is unclear whether O'Connor will be around long enough to vote in these and other cases, including one on assisted suicide.

O'Connor's biggest impact could be on an upcoming New Hampshire abortion case, in which the constitutionality of a law requiring parental notification for a minor's abortion is to be reviewed by the Supreme Court on Nov. 30. Some constitutional scholars think O'Connor would be likely to reject the law.

As a result, the continued presence of O'Connor on the court is pleasing to groups supporting abortion rights, such as the Planned Parenthood League of Massachusetts. ''Sandra Day O'Connor has served as a critical swing vote in protecting the right to privacy and a woman's right to reproductive choice," said the group's spokesman, Angus McQuilken.

Leaders of some antiabortion groups said they have made a calculated decision that they can put up with the short-term impact of O'Connor's remaining on the bench in exchange for their hope of getting a more conservative justice for the long term.

''We are definitely not thrilled that Sandra Day O'Connor will remain on the court longer as a result of this nomination being withdrawn," said Jesse Binnall, spokesman for Public Advocate, which called for Miers's withdrawal on the day her nomination was announced. ''We know that Sandra Day O'Connor is going to be a bad vote on these abortion votes on the Supreme Court, so we just really hope that by the time the Supreme court is voting on those cases, O'Connor is off the bench."

O'Connor yesterday declined to say when she would be leaving the court.

''When I announced my intention to retire, I said it would become effective on the nomination and confirmation of my successor. Life took an unfortunate turn when our chief justice passed away after the nomination of John Roberts to fill my seat. . . . [Now] it sounds like it may go on a little longer," O'Connor said. The upcoming abortion case, Ayotte v. Planned Parenthood of Northern New England, is being closely watched because it could have a significant impact on the ability of minors to seek abortions, according to Jack Beermann, a law professor at Boston University.

It is difficult to predict the impact of O'Connor's continued tenure because it is unclear whether her vote on the abortion case and others will count. Under Supreme Court rules, O'Connor is allowed to hear cases, but her vote counts only if she is on the court the day the decision is publicly disclosed.

If she leaves before a decision is announced, and the result is a 4-to-4 tie, then the court can ask for the cases to be reargued after O'Connor's replacement is confirmed, according to Randy Barnett, a law professor at Boston University.

O'Connor has already heard arguments in an assisted suicide case, Gonzales v. Oregon. In that case, some Oregon residents say a US directive prohibiting the use of controlled substances in cases of assisted suicide violates a state law that allows a terminally ill person to use a prescribed medicine to end life in certain cases.

On Dec. 6, the high court is scheduled to hear an appeal that involves gay rights and the Pentagon's ''don't ask, don't tell" policy.

Susan Milligan of the Globe contributed to this report, which includes information from the Associated Press.