Roberts court faces first abortion cases

In their confirmation hearings last year, John Roberts and Samuel Alito sidestepped pointed questions about whether they would overturn abortion precedents. Now, a year later, the country is about to get some answers.

Wednesday, the US Supreme Court takes up two cases challenging the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003.

The cases offer a first look at how the high court under Chief Justice Roberts will approach the divisive issue of abortion. While the Partial-Birth Abortion Ban Act poses no direct threat to major abortion precedents like Planned Parenthood v. Casey and Roe v. Wade, activists on both sides of the debate are watching closely to see if the two federal ban cases – and new justices on the court – trigger a turning point in abortion jurisprudence permitting more rigorous regulations at the state and federal level.

At issue in Gonzales v. Carhart and Gonzales v. Planned Parenthood is whether Congress acted within its authority when it mandated a national ban of so-called partial-birth abortions without including an exception to protect a woman's health.

Protection of a woman's health has been a paramount concern of the high court since Roe v. Wade. But the Partial-Birth Abortion Ban Act introduces a second concern – as the law puts it: "protecting the life of the partially-born child."

Supporters say the law is necessary to foster respect for human life by outlawing what they call a gruesome abortion procedure that approaches infanticide. Opponents see the federal ban as part of an agenda to gut and eventually overturn abortion precedents all the way back to Roe v. Wade.

That's why, during their confirmation hearings, Judges Roberts and Alito were asked early and often about abortion and the legal concept of enforcing existing precedents known as stare decisis.

"I do think it is a jolt to the legal system when you overrule a precedent," Roberts told the Senate Judiciary Committee in September 2005. But he added, "The principles of stare decisis [also] recognize that there are situations when that's the price that has to be paid."

His cautious answers extolling the virtues of both upholding and overturning precedents thus set the stage for what could become a dramatic moment of truth at the high court in the two cases to be argued Wednesday.

"No law has ever been upheld where it is understood that part and parcel of the regulation is a requirement that a woman absorb an increased risk to her health," says Roger Evans, legal director of Planned Parenthood Federation of America, which is challenging the law.

US Solicitor General Paul Clement says the law does not impose an undue burden on a woman's access to abortion. "The act simply eliminates a disfavored and rarely used late-term abortion procedure," he says in his brief to the court. "No precedent of this court requires the judicial invalidation of that legislative measure."

With the retirement of Justice Sandra Day O'Connor, there is much speculation about how the new lineup of justices will rule on the issue. The last time the court considered a similar case, in 2000, it split 5-to-4. Justice O'Connor cast the deciding vote to strike down a similar partial-birth abortion ban enacted in Nebraska. Now, O'Connor has been replaced by Justice Alito. Many analysts say that Alito and Roberts will align with conservatives Antonin Scalia and Clarence Thomas.

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