By MICHAEL MCGOUGH
November 10, 2005
What is not clear is whether Justice O'Connor will be around when the court decides the cases - an uncertainty that troubles abortion-rights supporters who worry that her designated successor, Judge Samuel A. Alito Jr., will be less supportive of those rights.
If O'Connor is not on the bench when those rulings come down, her vote won't count. Depending on how the justices line up, that could lead to a 4-4 tie in one or both of those cases and possibly a re-argument before a court that included Alito.
The first case, Scheidler v. National Organization for Women, deals with racketeering allegations against the anti-abortion group Operation Rescue.
In the second, Ayotte v. Planned Parenthood, the justices will review a decision by the 1st U.S. Circuit Court of Appeals striking down a New Hampshire law requiring a minor seeking an abortion to notify at least one parent.
When O'Connor announced her retirement on July 1 "effective upon the nomination and confirmation of my successor," she had no reason to believe that she would still be on the court when these cases were argued.
But the death of Chief Justice William H. Rehnquist led President Bush to replace Rehnquist with Judge John Roberts, who was originally nominated to succeed O'Connor.
Bush then nominated White House Counsel Harriet Miers to replace O'Connor, but even before Miers withdrew, it was unlikely that she could be confirmed in time to hear the abortion cases.
Last week, Sen. Arlen Specter, the chairman of the Judiciary Committee, announced that hearings on Alito's nomination would begin Jan. 9 with an expected floor vote on Jan. 20. If confirmed, Alito likely would take his seat on Jan. 23, when the court meets but is not scheduled to hear arguments.
That would mean the court - which will take a Christmas break from Dec. 13 to Jan. 6 - would have to produce majority and, if necessary, minority opinions in the case by mid-January or O'Connor's vote would not count.
That wouldn't matter unless the rulings were 5-4, in which case the court would split 4-4, affirming the lower court, or order a re-argument before the newly constituted Supreme Court.
The court takes longer to decide some cases than others. Last year, the court heard two cases on Nov. 30. In one, it rendered a decision on Jan. 11, but the other wasn't decided until March 29.
Arthur Hellman, a professor at the University of Pittsburgh Law School, said he doubted that the court could render a decision fast enough for O'Connor to take part.
"If O'Connor is the deciding vote, it's hard to see how the court could decide the case by the end of the January session," Hellman said. But he added that "the way things are going, there's no guarantee Alito will be confirmed by then."
Ken Gormley, a professor at Duquesne University Law School, said that it was possible for the court to fast-track close cases "as a courtesy to the litigants and to O'Connor."
"You try to move to complete as many cases as possible as they were presented to the court," Gormley added.
In the Operation Rescue case, the court is reviewing a finding by the 7th U.S. Circuit Court of Appeals in Chicago that some violent and threatening acts imputed to anti-abortion demonstrators at abortion clinics might constitute a violation of the Hobbs Act. In 2003, the Supreme Court ruled that other alleged incidents of racketeering didn't meet that legal test.
The more important case is Ayotte v. Planned Parenthood, in which the 1st Circuit struck down New Hampshire's parental-notification law because it didn't contain an exception to protect a pregnant teenager's health.
A second aspect of that decision was the appeals court's conclusion that a law restricting abortion can be enjoined - even before it takes effect - if it imposes an "undue burden" on the right to abortion.
In 1987, the Supreme Court said that a "facial challenge" to a law - that is, an argument that a law as written should be declared unconstitutional by court - can succeed only if "no set of circumstances exists under which the act would be valid."
But the 1st Circuit, interpreting the Supreme Court's landmark 1992 Planned Parenthood v. Casey decision, held that a different rule should apply in abortion cases. Other federal appeals courts have taken a different view.
How the court resolves the "facial challenge" issue could determine whether abortion laws are nullified before they implemented or whether opponents of such laws will have to wait until the law goes into effect and then gather evidence that it imposes an "undue burden" in particular cases.
Abortion-rights activists fear that Alito might be more amenable than O'Connor to the argument that abortion laws should be allowed to go into effect before they are challenged, although O'Connor in a 1989 case endorsed the "no set of circumstances" rule.
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