The National Pulse

A Reading on Roberts


Indeed, in what would be his first week on the job, Roberts–chosen by President Bush for his conservative views–may have to decide between two strands of conservatism. (At deadline for this story, hearings had not yet been held on Roberts’ nomination.)

On Oct. 5, the justices will hear the Bush administration’s challenge to the nation’s only right to die law. Gonzales v. Oregon, No. 04 623, pits social conservatives against advocates for federalism, the notion championed by the court’s conservative justices that states should be given more power relative to the federal government.

Oregon’s voters have twice approved a measure that permits the terminally ill to obtain a dose of lethal medication from their doctors.

Oregon’s Death with Dignity Act is popular but rarely used. While many cancer and AIDS patients have obtained lethal medication, only 208 people used it to end their lives, state officials told the court.

Four years ago, shortly after John Ashcroft became attorney general, he launched a drive to declare the state statute a violation of federal drug control laws. Prescribing lethal medication does not serve a legitimate medical purpose, Ashcroft argued, and he warned doctors they could lose their licenses to prescribe drugs. The state law did not shield them, he said.

But the 9th U.S. Circuit Court of Appeals at San Francisco blocked Ashcroft’s initiative, saying the states have historically played the lead role in regulating the practice of medicine.

As if to tweak the former attorney general, the appeals court relied heavily on one of the Supreme Court’s most important federalism opinions, Gregory v. Ashcroft, 501 U.S. 452 (1991). In that case, the court sided with then Missouri Gov. John Ashcroft, who insisted on enforcing the state’s mandatory retirement age to oust older Missouri judges. The state judges had contended this state mandated retirement age violated the federal law against age discrimination.

Sussing Out His Style

Writing for the court in the Missouri case, Justice Sandra Day O’Connor–whom Roberts was originally chosen to replace–said federal regulators were not free to interfere with the core powers of a state.

In June, O’Connor also defended California’s right to legalize medical marijuana, calling the states “laboratories” where new ideas may be tried in practice. Gonzales v. Raich, 125 S. Ct. 2195. The Oregon case should give an early clue whether Roberts shares her enthusiasm for federalism and the sovereign role of the states.

On the other hand, an abortion case from New Hampshire brings social conservatives and state advocates to the same side. Ayotte v. Planned Parenthood of Northern New England, No. 04 1144. Although it doesn’t ask whether Roe v. Wade should be overruled, the decision could give the states far more leeway to regulate abortion.

Two years ago, the state of New Hampshire joined other states in making it illegal for a doctor to perform an abortion on a minor until at least 48 hours after written notice is given to one of her parents. The law makes an exception if the abortion is necessary to prevent the minor’s death. It does not make an exception for medical emergencies that threaten her health.

For that reason, the 1st U.S. Circuit Court of Appeals at Boston blocked the law from taking effect. In the past, the Supreme Court has said abortion may not be restricted in a way that threatens the health of a woman.

When the state’s attorney general, Kelly Ayotte, petitioned the court, she raised an abstract question: May judges strike down a state law on its face because it may infringe the rights of a handful of people? Most young women who seek an abortion do not face a medical emergency, but a few might.

The state’s lawyers say that since the parental notification law permits young women to seek a waiver from a judge, the law is constitutional and should be allowed to go into effect. Lawyers for Planned Parenthood say a patient should go immediately to a hospital, not to a courthouse, if she faces a medical emergency. They argue that the law is unconstitutional if it puts this barrier between a pregnant patient and a needed abortion. “Even one woman harmed by this law is one woman too many where her health and safety are at risk,” says Dara Klassel, a lawyer for Planned Parenthood.

Familiar Ground

On Nov. 30, the same day arguments will be heard in Ayotte, the high court will hear a second abortion case involving militant protesters. Scheidler v. National Organization for Women, No. 04 1244, dates back nearly 20 years to an era of bombings and break ins at abortion clinics, and it tests the reach of the federal racketeering and extortion laws.

Lawyers for NOW had sued Operation Rescue and the leaders of several anti abortion groups under the federal Racketeer Influenced and Corrupt Organizations Act. They alleged the protesters conspired to use force and threats to shut down the clinics. A jury in Chicago agreed with NOW, and a judge imposed a nationwide injunction that forbade the protesters from picketing abortion clinics.

In past rulings, the justices have raised doubts over whether the racketeering and extortion laws can be used in the abortion context because the protesters are not seeking to take over the abortion business. Lawyers for Operation Rescue are urging the high court to wipe out the injunction.

The issue will be a familiar one for Roberts. As deputy U.S. solicitor general in 1992, he argued for and later won a ruling that overturned an injunction against Operation Rescue brought under the Ku Klux Klan Act. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).

Also, the court will hear a clash between the First Amendment rights of colleges and universities and the military’s right to recruit on campuses. “Effective recruitment is essential to an all volunteer military, particularly in a time of war,” said the administration’s lawyers in Rumsfeld v. Forum for Academic and Institutional Rights, No. 04 1152.

They rely on the Solomon Amendment, in which Congress said schools receiving federal funds must give military recruiters the same access to students and facilities as they give to private sector employers.

However, a coalition of law schools and professors challenged this law on First Amendment grounds. The schools had adopted a policy that bars recruiters who discriminate against gays and lesbians, which they claim that the Pentagon does. Five years ago, the Supreme Court ruled that the Boy Scouts have a First Amendment right to exclude openly gay scoutmasters from their ranks, and the law schools said they have the same right to exclude anti gay recruiters from their campuses. The court will hear the case Dec. 6.

Finally, the court will try again to decide whether the Americans with Disabilities Act can be enforced against states, public colleges and prisons.

On Nov. 9, the justices will hear U.S. v. Georgia, No. 04 1203, to decide whether prisoners with disabilities can sue the state if they suffer abuse and discrimination. Bush administration lawyers joined the case on the side of Tony Goodman, a paraplegic prisoner who said he was kept in a cell so small that he could not turn his wheelchair.

The court has been deeply split over whether states may be sued if they violate this federal law. Four years ago, the court in a 5-4 decision said disabled state employees could not sue when they suffered discrimination. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356. The states enjoy sovereign immunity, the court said then.

Last year, in another 5-4 decision, the court said a paralyzed man in a wheelchair could sue a state that denied him access to its courthouses. Tennessee v. Lane, 541 U.S. 509. In Lane, the court held that the ADA could trump state sovereign immunity because court access was a fundamental due process right.

O’Connor cast the deciding vote in both cases, one to limit the federal law and the other to enforce it. Court observers will be watching eagerly to see how a new court deals with these issues.


David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.


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