Fall Cases on Hot-Button Issues May Hinge on the New Justice

Abortion. Physician-assisted suicide. Gay rights. How will the Supreme Court handle those issues without Justice Sandra Day O'Connor, the centrist swing voter who announced her retirement from the court last week after a 24-year tenure?

Actually, it probably won't take long to find out. The abortion rights of teenagers, administration efforts to override a state right-to-die law, and the military's "don't ask, don't tell" policy are all on the docket for the court term that begins Oct. 3.

O'Connor's past opinions show that she would have played a pivotal role in these cases. Now, their outcome may hinge on the views of her successor. Learning those views may prove challenging to senators, if a nominee adheres to the practice of not answering questions about matters that are, or soon will be, before the court.

"One of the fascinating dances in the confirmation process is going to be how much you can get a nominee to answer, even about relatively recent precedents, when the issues are presented in cases that are pending on the docket," said Douglas W. Kmiec, a professor of constitutional law at Pepperdine University.

The retirement of O'Connor, who often cast the deciding vote in the court's cases, could portend great change at the court, especially if President Bush replaces her with a steadfastly conservative nominee, as many expect.

If O'Connor's career teaches anything, it is that a justice's initial votes on the court are not necessarily a reliable guide to what that justice will do in the course of a long, life-tenured career. In her first years, she leaned heavily against abortion and affirmative action, only to tack in the other direction later.

Even if O'Connor were replaced by a conservative opponent of Roe v. Wade , the 1973 ruling recognizing a right to abortion, Roe would still have the support of a five-justice majority. Any challenge to its core holding would take years to bubble up from lower courts.

Still, next term will present O'Connor's successor with a chance to answer important questions about the scope of Roe as well as other precedents.

For example, a 1992 Supreme Court decision, co-written by O'Connor, set forth a test for the constitutionality of state abortion regulations, saying they must not impose an "undue burden" on exercising the right to abortion.

On the Docket Major cases that the Supreme Court is expected to hear during its fall term: Abortion Physician-Assisted Suicide Gay Rights / Academic Freedom Ayotte v. Planned Parenthood The court's ruling on the constitutionality of a New Hampshire law will either strengthen previous abortion rights decisions or allow states to pass more restrictive parental-notification requirements. Gonzales v. Oregon A decision will clarify to what extent the federal government can regulate controlled substances. If the court sides with the government, the practical effect will be to nullify the state's Death With Dignity Act. Rumsfeld v. FAIR A ruling on the constitutionality of the law at issue in this case, the Solomon Amendment, will determine if the government can compel colleges that receive federal funds to grant access to military recruiters. Background: The state law would ban abortions for minors unless their parents have been notified. It only provides exceptions for abortions necessary to prevent death or if a judge rules that the minor is mature enough to make the decision. Background: The court will hear the Bush administration's challenge to a circuit court decision that prevented the Justice Department from restricting doctors' use of federally controlled substances to help terminally ill patients commit suicide. Background: Congress originally passed the amendment in response to the policies of many university law schools, which barred recruiters for employers who practiced discrimination. The restrictions applied to the military because of its ban on openly gay soldiers. SOURCE: Washington Post reporting, Duke Law School | THE WASHINGTON POST

The court defined an undue burden as a law that "in a large fraction of cases" puts a "substantial obstacle" in the way of someone seeking an abortion.

At the same time, the court has said that states may pass laws requiring minors to notify their parents of plans to terminate a pregnancy, as long as they permit minors to seek a court's permission when informing their parents is impossible or dangerous.

The court has never clarified whether O'Connor's "undue burden" test means that parental-notification laws, which are on the books in 33 states, must include an explicit exception for cases in which the pregnant girl's health is at risk.