Abortion cases loom on Supreme Court docket

If John Roberts is confirmed, he'll get his first shot at Roe vs. Wade on Nov. 30.

Published July 20, 2005 4:21PM (EDT)

If anyone is thinking that John Roberts' views about abortion rights are somehow a theoretical concern, it's time to think again. The Supreme Court has just released its schedule of cases for the first part of the next term. On Nov. 30, the court will take up one case involving abortion rights and two more involving the legal protections abortion providers can obtain from pro-life activists who try to shut them down.

In the first of the cases, Ayotte vs. Planned Parenthood of N. New England, the Supreme Court will consider the constitutionality of a New Hampshire law that prohibits a minor from obtaining an abortion unless her parents are notified first. Many states have such laws, but New Hampshire's is different: It doesn't include an exception to the parental-notification requirement for cases in which the minor's health is at risk. The U.S. Court of Appeals for the 1st Circuit invalidated the law, saying that it violated the "undue burden" test Sandra Day O'Connor established when she provided the fifth vote for upholding Roe vs. Wade in Planned Parenthood vs. Casey. While O'Connor replacement's won't be able to overrule Roe out of the box -- Ruth Bader Ginsburg joined the court after Casey was decided, ensuring a 5-4 majority to uphold Roe even with O'Connor gone -- Ayotte would give Roberts and his colleagues on the right a chance to begin rolling back Roe's protections.

The other cases scheduled for Nov. 30 are Scheidler vs. NOW and Operation Rescue vs. NOW, two cases that concern the circumstances -- if any -- under which abortion providers can obtain injunctions prohibiting anti-abortion activists from interfering with their work through acts of violence and intimidation. Variations of this dispute have been before the court twice before -- once in 1994, then again in 2003 -- and NOW has won one and lost one.

With the questions getting narrower each time the case comes up, the justices may well be more closely divided than they were in 2004, when they ruled against NOW's position by an 8-1 vote. Roberts' vote could be crucial -- that is, if he doesn't feel the need to recuse himself from the cases altogether: In 1993, while he was working as a deputy solicitor general in the first Bush administration, Roberts wrote a brief taking Operation Rescue's side in a dispute with abortion providers.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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