Hot-Button Issues Will Be on Court’s Front Burner

Times Staff Writer

If confirmed by the Senate, President Bush’s Supreme Court nominee could have a decisive impact this fall on cases involving abortion, assisted suicide, the death penalty and the government’s pursuit of the war on terrorism, judging from the schedule of upcoming cases published by the court Thursday.

The court has been closely split on those issues, and the cases illustrate how a more conservative successor to retiring Justice Sandra Day O’Connor could tip the balance to the right -- and right from the start.

Judge John G. Roberts Jr., if confirmed, would face such a test in his first week on the high court. On Oct. 5, justices will hear the Bush administration’s challenge to the nation’s only “right to die” law.


Voters in Oregon have twice approved a state measure that allows terminally ill people to obtain medication from their doctors to end their lives. But soon after taking office in 2001, then-Atty. Gen. John Ashcroft declared that doctors who gave lethal medication to dying Oregonians would lose their licenses to prescribe medicine.

Oregon’s governor and several doctors sued to stop Ashcroft. They relied on a states’ rights argument, saying the regulation of medicine was traditionally left to the states. A federal judge in Oregon and the U.S. 9th Circuit Court of Appeals agreed and ruled that Ashcroft had overstepped his bounds.

O’Connor had been a steady defender of states’ rights, and the Oregon case had parallels to last month’s medical marijuana case decided by the high court. Though she would not have voted to legalize medical marijuana, California voters did so, and the court should uphold that decision, she said in dissent.

In the Oregon case, antiabortion activists have filed briefs siding with the Bush administration and arguing that assisted suicide is a crime, even if the people of Oregon think otherwise. The case could signal whether Roberts would support states’ rights, the traditional conservative position, or vote to impose federal drug policy on Oregon.

Two abortion cases could give an early hint as to whether Roberts would join Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas in seeking to repeal the abortion right.

Before O’Connor’s retirement, six of the nine justices supported the right to abortion established in the Roe vs. Wade ruling. However, one of those six -- Justice Anthony M. Kennedy -- has said states may strictly regulate abortion, even if they may not ban it. A switch of one vote would mean a 5-4 majority supporting stricter regulation.

A New Hampshire case to be heard Nov. 30 tests whether states must allow doctors to perform emergency abortions on teenagers without first notifying their parents.

Most states have a law that requires such notification. New Hampshire lawmakers adopted this requirement two years ago, but they did not include an exception for medical emergencies. For that reason, a federal judge and the U.S. appeals court in Boston blocked the law from taking effect.

The judges relied on O’Connor’s past opinions in which she said states could not regulate abortion in a way that endangered the health of pregnant women.

If Roberts joins with the court’s conservative bloc, they could revive New Hampshire’s law in the case of Ayotte vs. Planned Parenthood and rule that parents must be notified in advance in all instances.

Later this year, the court is likely to revisit the issue of what opponents call “partial-birth abortion.” Five years ago, O’Connor cast the deciding fifth vote to strike down a state’s ban on this surgical procedure because, she said, it would force some pregnant women to undergo more risky surgery.

Bush administration lawyers will ask the Supreme Court to uphold a federal law that bans this midterm abortion. An appeals court in St. Louis recently struck down the law, citing O’Connor’s view.

The court will also take up cases that test the limits of the government’s power to fight the war on terrorism, another issue that divides along liberal-conservative lines.

On Nov. 29, the court will consider whether the Pentagon has a right to send military recruiters to colleges, universities and law schools. “Effective recruitment is essential to an all-volunteer military, particularly in a time of war,” lawyers for Defense Secretary Donald H. Rumsfeld said.

Some law schools and universities have balked at allowing the Pentagon to recruit on campuses because the military discriminates against gays and lesbians. And a U.S. appeals court in Philadelphia ruled that the schools had a free-speech right to say no to the Pentagon.

The court is also likely to take up a case testing the president’s power to capture and hold “enemy combatants.” Last year, O’Connor wrote that a war did not give the president a “blank check” to imprison people indefinitely. They must be given some chance to contest the charges and to prove their innocence, she said.

But administration lawyers continue to say these “enemy combatants” are not entitled to trials, and several cases are winding their way to the high court.

Again this year, the court will consider how the death penalty is administered. For example, the justices will hear cases in which new DNA evidence has raised doubts about an old conviction.

O’Connor, while upholding capital punishment as constitutional, sometimes cast the fifth vote to overturn death sentences in cases where a lawyer had bungled or where new evidence had cast doubt on a defendant’s guilt.

Finally, the court will try again to decide whether the federal civil rights law for people with disabilities can be enforced against states, public colleges and prisons.

In the past, the court ruled 5 to 4 that the federal antidiscrimination law did not protect disabled state employees. Last year, in another 5-4 decision, the court said the law did protect a paralyzed man in a wheelchair who could not gain access to a state courthouse. O’Connor cast the deciding vote in both cases, one to the limit the federal law and the other to enforce it.

This year, without her, the high court will try to resolve the matter. On Nov. 9, the justices will hear a Georgia case that tests whether disabled inmates in state prisons are protected from discrimination under the Americans with Disabilities Act.