Court to tackle race, abortion

Roberts, Alito could tip balance to right

October 02, 2006|By David G. Savage | David G. Savage,Chicago Tribune

WASHINGTON -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., President Bush's two appointees, will have a chance to shift the law to the right on two charged issues - abortion and race - during the Supreme Court term that starts today.

The court will decide whether doctors can be prosecuted for using a midterm abortion procedure that critics have labeled "partial-birth abortion." And it will rule on whether school boards can maintain integrated schools by assigning some students based on their race.

In the past, Justice Sandra Day O'Connor has provided the fifth vote for majority rulings that struck down abortion regulations and allowed schools and colleges to use affirmative action. Now that O'Connor has been replaced by Alito, the balance may tip the other way.

The session also will see the court take up global warming for the first time. Environmentalists are asking the justices to force the Bush administration to limit vehicle emissions causing climate change.

Business lawyers and consumer advocates are closely watching another case involving cigarette-maker Philip Morris to see whether the court will strictly limit "punitive" damage verdicts against corporations.

And California's nearly 30-year system for sentencing criminals is under attack. In recent years, the court has said juries, not judges, should decide the key facts that call for longer prison terms.

In California, a judge may impose a longer prison term if certain "aggravating factors" are found. If the court declares this sentencing system unconstitutional, thousands of state inmates might win the right to have their sentences reconsidered.

Abortion remains the most divisive issue before the court.

Until now, a narrow 5-4 majority had held to the view that the government may not regulate abortion in a way that threatens the life or health of pregnant women.

Relying on that principle, the court six years ago struck down a Nebraska law that made it a crime for doctors to use a second-trimester surgical procedure that critics call "partial-birth abortion."

Some physicians, including Dr. LeRoy Carhart of Bellevue, Neb., seek to remove the tiny fetus intact before cutting its umbilical cord. This procedure, known as D&X, for dilation and extraction, carries less risk of bleeding and infection than other procedures, the doctor maintains.

The court, in a 5-4 decision upholding the practice, agreed with him, saying that "significant medical authority supports the proposition that, in some circumstances, the D&X procedure would be the safest procedure."

The dissenters called the procedure "gruesome" and "horrific" and said it bears "a strong resemblance to infanticide."

Afterward, Congress passed the federal Partial-Birth Abortion Ban Act, and President Bush signed it into law in 2003. Contradicting the court's conclusion, lawmakers said the disputed procedure is "never medically indicated to preserve the health of the mother."

Judges in Omaha, Neb., and San Francisco conducted trials and heard testimony from leading medical experts. Both concluded that the disputed D&X procedure was a variant on the standard dilation and evacuation method of abortion at this stage of pregnancy. And both agreed with medical experts who said it was often safer.

"This is a medical matter, and the court has never deferred to Congress on a medical issue like this," said Priscilla Smith, a lawyer for the Center for Reproductive Rights, which is representing Carhart.

But U.S. Solicitor General Paul D. Clement said Congress' conclusion that the "partial birth" abortion procedure is not needed to protect women "is entitled to great deference."

The oral argument is set for Nov. 8, the day after the elections.

The court has been closely split on race and affirmative action.

Three years ago, with O'Connor speaking for a 5-4 majority, the court ruled that colleges and universities may consider race in the admissions process to bring more diversity to the student body. But the court's conservatives say schools and colleges should not treat students differently because of race, regardless of the reason for doing so.

The court agreed to hear a challenge to public school integration policies in Seattle and Louisville, Ky., that sometimes lead to children being barred from certain schools because of their race. In Louisville, officials said at least 15 percent, and no more than 50 percent, of a school's students must be black. The parent of a white child sued when her son was turned away from the school nearest her home.

Bush administration lawyers joined the case on the side of the parents and argue that "racial balancing" is unconstitutional. However, school officials say that because housing is segregated in many cities, they need to use race-based guidelines to maintain integrated schools. The case will be heard Dec. 4.

The global warming case tests whether a coalition of states can force the Bush administration to take action against greenhouse gases.

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