By BOB EGELKO
San Francisco Chronicle
November 29, 2005
At issue when the court hears arguments Wednesday will be a New Hampshire law requiring that parents be notified before girls under 18 can have an abortion, the same requirement that California voters rejected this month.
The New Hampshire law does not involve a direct attack on Roe vs. Wade, the 1973 Supreme Court ruling that established women's constitutional right to abortion. But if the court endorses the Bush administration's position in the case, virtually any restriction short of an outright ban on abortion will be protected from legal challenge until after it takes effect - and then could be challenged only in individual cases rather than across the board.
"The right to abortion would remain standing, but ... access would be severely restricted," said Beth Parker, a San Francisco attorney for Planned Parenthood. The group's New Hampshire office is the plaintiff in the Supreme Court case.
Mathew Staver, chief lawyer for Liberty Counsel, which filed arguments in defense of the New Hampshire law, said a favorable ruling "would bring abortion back within normal jurisprudence" and thwart pre-enforcement lawsuits except in extreme situations. Both lawyers agreed that such a ruling would allow states to enforce a variety of abortion laws, including bans on specific types of abortions, mandatory waiting periods and laws requiring married women to consult their husbands before ending a pregnancy.
This will be the first abortion case to come before Roberts, whose predecessor, the late Chief Justice William Rehnquist, dissented in Roe vs. Wade and voted consistently to uphold restrictions on abortion.
Roberts, President Bush's first Supreme Court appointee, never ruled on an abortion case as a federal appeals court judge. But as a Justice Department lawyer, he signed legal arguments saying Roe vs. Wade should be overturned and also wrote a memo calling for appointment of judges who "respect the sanctity of innocent human life."
The court could change membership again before the New Hampshire case is decided. A ruling is unlikely before January, when the Senate is scheduled to take up the confirmation of Judge Samuel Alito, Bush's nominee to succeed the retiring Justice Sandra Day O'Connor.
O'Connor often has cast the deciding vote in abortion cases. She is scheduled to take part in Wednesday's hearing but will not cast a vote if the case is still pending when she leaves.
If her departure leaves the court divided 4-4, the case probably would be scheduled for reargument the following term before the newly constituted court. The court could include Alito, who also expressed anti-abortion views as a Justice Department lawyer.
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