Justices to Hear Abortion, Gay Rights Cases

The Supreme Court took up two of the fiercest fights in the nation’s culture wars Friday, saying that it will decide whether so-called partial-birth abortions can be outlawed and whether the Boys Scouts of America can exclude gays.

Both cases will be argued in April and decided by late June.

In the abortion case, the justices will consider a controversial but rarely used procedure that opponents say is “hideous” and “barbaric.” For their part, abortion rights advocates see a threat to women’s rights because laws prohibiting the procedure could be read to ban nearly all abortions.

In the Boy Scout case, the justices said that they would review a New Jersey court’s order that requires the Boy Scouts to admit gays on an equal basis. At issue is whether the Scouts are a private group entitled to set its own membership rules or a public organization that may not discriminate.

The abortion issue will return to the court this spring after an extended absence. The justices have not heard a major abortion dispute since 1992, when they reaffirmed the right to abortion on a 5-4 vote.

At that time, Justice Sandra Day O’Connor said that states could not put an “undue burden” on a woman’s right to terminate a pregnancy before the time a fetus can live on its own. This occurs after about six months of pregnancy.

Since then, abortion foes have focused their efforts on the late-term abortion procedure.

Some doctors say that this procedure is needed in special cases. Halfway through a normal pregnancy, some prospective mothers learn that their babies have severe malformations. But at this stage, the fetus is too large to be removed easily and without putting the mother at risk.

According to court testimony, some doctors pull the fetus’ feet from the womb first and then pierce the skull to shrink it. A few seconds later, the entire fetus is removed.

The National Right to Life Committee labeled this a “partial-birth abortion” because in most instances the fetus is still alive when the skull is pierced. (Some doctors say that they use an injection to kill the fetus before beginning the surgery. Others say that these injections are risky to the mother.)

Since 1995, more than half the states have passed laws forbidding “partial-birth abortions.” Judges are divided on whether the laws are constitutional.

Nebraska’s statute makes it a crime to “partially deliver . . . a living unborn child before killing it.” A judge in Lincoln, Neb., concluded that this ban might cover all abortions since, even during a first-term abortion, a fetus’ heart may still be beating when it is removed.

‘Undue Burden on a Woman’s Right’

For this reason, the judge and the U.S. Court of Appeals in St. Louis said, the state law puts an “undue burden on a woman’s right to choose an abortion.”

Disagreeing, Nebraska’s attorney general said that his state’s law targets “a particularly hideous procedure” that should be banned.

Because the lower courts are divided, it came as no surprise when the justices announced that they would hear the case (Stenberg vs. Carhart, 99-830). Their ruling on what has been a politically volatile issue will come just months before the nation elects a new president.

Abortion rights lawyers say that the attack on “partial-birth abortions” has been a publicity stunt intended to undercut support for all abortions.

The wave of broadly worded abortion bans has created “a constitutional crisis” that threatens women’s freedoms, said Janet Benshoof of the Center for Reproductive Law and Policy, a New York-based group that is fighting the laws.

The Rev. Pat Robertson’s American Center for Law and Justice said that the case gives the court “an opportunity to outlaw one of the most barbaric forms of death being practiced in our society today.”

The Boy Scouts have been deemed a private, non-business group in California and elsewhere. Therefore, they need not comply with the state’s main anti-discrimination law. It covers private workplaces and businesses that are open to the public, such as hotels and restaurants.

But in August, the New Jersey Supreme Court became the first to extend an anti-bias law to the Boy Scouts. James Dale, an Eagle Scout and a 20-year-old scoutmaster, had been kicked out after he revealed that he is gay in a Newark newspaper article.

Siding with Dale, the state judges ruled that the Boy Scouts are essentially a public enterprise, since the group is open to all boys. And, as a public organization, the Scouts may not discriminate based on sexual orientation, the state court concluded.

Boy Scouts Angrily Asks for Intervention

In an angry tone, the Boy Scouts of America asked the Supreme Court to intervene and to set a national rule that shields the Scouts from such orders. Nationwide, 4.75 million boys are Scouts and nearly 1.3 million men are listed as Boy Scout leaders.

Lawyers for the Scouts said that the group’s code of conduct demands “morally straight” behavior. They argue that required inclusion of gays in the organization violates their 1st Amendment rights because it conflicts with that message.

Had the high court rejected the appeal, it would have set no national precedent. The New Jersey ruling would have applied only there. Instead, the justices said that they would hear the case (Boy Scouts of America vs. Dale, 99-699) to consider setting a national rule.

The Lambda Legal Defense Fund, a New York-based gay rights group, is representing Dale. It said that Scouting is and should be “about honesty, community service, self-reliance and respect for others--not discrimination and anti-gay bigotry.”

But the San Diego-based American Civil Rights Union said that the freedoms of all private organizations are at stake.

“This is about the freedom of association, not so much gay rights,” said Robert Carleson, a former Ronald Reagan administration official who heads the new group, which calls itself a conservative alternative to the American Civil Liberties Union. “If the New Jersey ruling is upheld, then no private organization can choose its own members or keep out anyone.”