AABE--Justices to Hear Abortion, Integration Cases

Abortion and race dominate the Supreme Court's agenda for the term that begins tomorrow, with the Bush administration and its conservative allies urging the justices to put limits on abortion rights and affirmative action.

Conservatives want the court to uphold a 2003 federal law banning the procedure opponents call "partial-birth" abortion, and to strike down local integration policies that distribute students by race. They are asking the court not only to rule in their favor, but to limit -- or, possibly, overrule -- recent constitutional decisions that have drawn heavy fire from the right.

The conservative push on social issues is just what Democrats and liberals, concerned about the future of Roe v. Wade , the 1973 case that recognized a right to abortion, warned against during confirmation hearings for the two Bush appointees now on the court -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

In response, Roberts and Alito pledged to take due account of stare decisis , the rule that says the court should avoid overruling past decisions.

So this term will be closely watched not only for the results the court reaches, but for how it reaches them.

"They don't want to make it look as if the only reason for change is that there are different people here," said Michael J. Gerhardt, a professor of law at the University of North Carolina. "They'll want to make it clear that principles and not politics dictated the outcome."

When the court takes up the federal abortion law, it will be considering a statute that was passed by a large majority in Congress and signed by Bush in 2003 -- and then struck down by every lower federal court that has considered it.

The lower courts ruled that the law is incompatible with a 5 to 4 ruling by the Supreme Court in 2000 that held that a similar state law, from Nebraska, was unconstitutional.

In that case, known as Stenberg v. Carhart , the court said the statute could be read to prohibit other procedures and lacked an exception to protect a mother's health, creating an "undue burden" on the right to abortion first recognized in Roe.

The Republican-controlled Congress included an exception to save a mother's life. It did not permit any other exception, however, based on its finding that none could be medically justified.

If the court wants to uphold the federal law without overruling a precedent that is only six years old, it could say that it is bound by Congress's factual findings, which distinguish the federal law from the Nebraska one.

That is the course urged by the Bush administration in its brief, which speaks of "the long-standing principle that Congress is better equipped than courts to make factual findings that inform the constitutionality of federal statutes."

But, the administration brief continues, to "the extent that the Court concludes that Stenberg compels the conclusion that the Act is facially invalid . . . Stenberg should be overruled."

In a brief on behalf of several doctors challenging the ban, the Center for Reproductive Rights told the court that it owes Congress no deference on issues of medical practice, and that the administration's suggestion that Stenberg may be overruled "demonstrates an inadequate regard for the societal values held safe by the principles of stare decisis ."

The decision to rule on "partial birth" abortion despite the absence of disagreement among lower courts was expected: The court usually reviews lower-court decisions holding federal laws unconstitutional.

Taking up race-conscious public school assignments was a surprise, however. The justices had turned down a similar case a few months earlier, when Sandra Day O'Connor was still on the court.

O'Connor wrote the court's opinion in a 5 to 4 case upholding race-conscious admissions in higher education.

But after Alito replaced her, the court spent almost two months discussing the public school issue before deciding in June to hear it.

At issue are voluntary school integration plans in Seattle and in Louisville, Ky.

In Seattle, where authorities seek to overcome what they say are segregated housing patterns, students can choose to attend any high school in the city, but some are oversubscribed.

To determine who gets in, officials deny admission to new students whose race would tip an oversubscribed school's population more than 15 percentage points outside a 60-40 nonwhite-white balance.

In Louisville, which was under court order to desegregate until 2000, the policy applies from first grade through high school and aims to prevent any school from falling below 15 percent black or exceeding 50 percent black.

In both cities, white parents whose children were not allowed into the schools of their choice sued, alleging that the policies were unconstitutional.

Lower courts ruled in favor of the schools, citing O'Connor's 2003 opinion, which said that diversity could be a strong enough government interest to warrant the use of race as a factor in allocating places in the University of Michigan's law school.

Several conservative legal organizations are urging the court in friend-of-the-court briefs to use the Seattle and Louisville cases to overrule the three-year-old Michigan decision.

But in their briefs, the white parents and the Bush administration, which supports them, do not urge overruling the Michigan case -- which caused deep internal divisions over affirmative action within the administration.

Instead, they tell the court that the public school plans are different because they are not true efforts at diversity but, as the administration brief puts it, "outright racial balancing," which the court has disapproved in other cases.