Abortion case puts spotlight today on Roberts's queries
The scope may color Alito's possible impact
WASHINGTON -- Supreme Court Chief Justice John G. Roberts Jr., who refused to discuss his views on abortion during his confirmation hearings, today will preside over a case challenging a New Hampshire law that imposes restrictions on minors seeking abortions.
Activists on both sides of the abortion divide are waiting to see whether his questioning reveals his underlying beliefs.
The arguments will take place before the backdrop of Judge Samuel A. Alito Jr.'s nomination to the high court, which will go before the Senate Judiciary Committee in January. Alito said 20 years ago that there is no constitutional right to abortion, and later ruled in favor of abortion restrictions in a Pennsylvania case. If confirmed, he would replace Justice Sandra Day O'Connor, who has been a swing vote in favor of abortion rights.
O'Connor will hear arguments from lawyers for both sides -- the State of New Hampshire and the reproductive rights group Planned Parenthood -- but may not be on the court when the case is decided. If she has been replaced by the time the justices decide the case, her vote will not count. If the court is tied, 4 to 4, the case would be reargued next term, and O'Connor's replacement could be the deciding vote.
New Hampshire's attorney general, Kelly A. Ayotte, will defend the state law requiring that parents be notified if their minor child seeks an abortion. Supporters say it is a common-sense measure that is comparable to a child seeking permission for any type of activity. But opponents said the law gives the Supreme Court an opportunity to chip away at abortion rights and perhaps even revisit whether abortion is a right protected by the Constitution.
Both sides believe that a crucial issue will be the law's lack of an emergency exception for a woman's health. The law requires a 48-hour waiting period for parental notification, which critics say could endanger the health of a woman seeking an abortion. In addition, the court will hear arguments about whether such a law can be challenged before it has gone into effect. The law has been blocked by a court injunction since it was due to go into effect in 2003.
While the views of a justice often can be hard to discern from his or her questions -- especially if a justice is purposely playing the role of devil's advocate -- the general scope of questioning is nonetheless closely studied.
''Roberts has managed to avoid revealing his thoughts [on abortion], and it is not terribly likely that his questions will reveal much," said Elliot Mincberg, vice president of the liberal group People for the American Way.
''Judges are adept -- whether intentional or not -- at masking their opinions. They will ask questions to both sides."
The case has become intertwined with this year's battles over two open Supreme Court seats. Some of the same conservative groups that have been active in backing the Roberts and Alito nominations are urging the court to uphold the New Hampshire law.
Wendy E. Long, counsel to Judicial Nomination Network, said in an e-mail yesterday, ''The same liberal extremists who oppose Judge Alito are attacking the right and duty of parents to be involved in their children's lives, and they are putting children's health at risk." Groups favoring abortion rights, meanwhile, have said the case demonstrates why it has been necessary for them to put so much emphasis on abortion during the confirmation battles.
Roberts, who previously served on the US Court of Appeals for the District of Columbia, has not ruled on an abortion case, but he has expressed a belief in federalism -- the power of states to decide many issues on their own. The case before the court today, Ayotte v. Planned Parenthood, involves a conflict between the state's power to regulate abortion and the rights asserted by clients of Planned Parenthood.
Nancy Mosher, chief executive of Planned Parenthood of Northern New England, said she is concerned about Roberts's philosophy regarding state power.
Roberts ''has not ruled on an abortion case, but his constitutional philosophy is very much that he has a history of believing that the states should have a lot of power to regulate," Mosher said yesterday.
John W. Whitehead, president of the conservative Rutherford Institute, which has filed a friend-of-the-court brief supporting the New Hampshire law, agreed that Roberts's view on state powers of legislation could be crucial.
''Roberts . . . has a history of upholding government action," Whitehead said.
Some observers believe that Roberts will merely mirror the vote of the man he replaced, William H. Rehnquist, who voted against abortion rights in many cases. But if Roberts turns out to be opposed to abortion rights, it would make Alito's vote even more significant.
In a 1985 job application, Alito wrote that ''the Constitution does not protect a right to an abortion." Then, in the 1991 case of Planned Parenthood v. Casey, Alito as an appeals judge voted for a provision requiring a married woman seeking an abortion to tell her husband first.
Alito's view, however, was overturned by the Supreme Court, with O'Connor providing the decisive vote. Alito would replace O'Connor, so abortion has become a centerpiece in the battle over his confirmation. 