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A Chip Off the Old Bloc

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By Dana Milbank
Thursday, December 1, 2005

When a chunk of marble fell from the Supreme Court facade Monday just above the figure representing Order, the metaphor alert sounded: Was it an omen?

The answer came yesterday, as the high court heard its first abortion cases in five years and the plaza in front of the court came to resemble a tailgate party before the homecoming game.

A Christian rock band provided the music, setting up amplifiers at the Supreme Court steps and crooning "Open the Floodgates of Heaven." Forty people representing the National Organization for Women led the cheers: "Two-four-six-eight! Separate church and state!" An antiabortion group hauled out the familiar banners displaying gruesome abortion photos.

There they all stood for five hours, fortified by chocolate chip cookies and coffee, chanting, shouting, singing and heckling.

"Over 47 million of America's finest have fallen at the hand of Roe v. Wade !" shouted Operation Rescue President Troy Newman.

"You're out here to kill kids!" another demonstrator, Joan McKee, shouted.

The women from NOW answered the antiabortion taunts with pep-rally chants. "Pro-life? That's a lie! You don't care if women die!" And: "Racist, sexist, anti-gay. Right-wing judges, go away!"

Observing this spectacle of American jurisprudence was Tammy Alsup, who flew up from Tennessee and had been waiting through rain and cold since 8:30 Tuesday night for a seat in the courtroom. Alsup, from a Christian prayer group, and a friend brought blankets and umbrellas and took catnaps while they waited. "We needed to take a stand," she explained.

But it was likely for naught. While partisans outside talked about an apocalyptic showdown over Roe v. Wade , the nine robed justices inside seemed determined to avoid a brawl. In the two abortion cases before them, the justices busied themselves with finer points of the law rather than sweeping changes to it.

First came the warm-up act, a case involving abortion-clinic protests that has been rattling around the courts for 19 years. A 1994 law made the case largely irrelevant, but, as is typical in the abortion wars, both sides continued fighting anyway. The justices seemed bored. Stephen Breyer rested his forehead in his hand. John Roberts removed his glasses and placed his chin in his hand. Clarence Thomas, chewing gum, rocked back in his chair, rubbed his eyes, stroked his head, and whispered to his neighbors.

After an hour of these preliminaries, Roberts called up the main event, Ayotte v. Planned Parenthood of Northern New England . The case had explosive potential: New Hampshire enacted a law requiring teens to have parents' consent for abortions, providing no exception if a girl is facing a medical emergency.

But the fireworks never came. New Hampshire Attorney General Kelly Ayotte acknowledged it was important to have some exception for emergency medical cases. The opposing lawyer, Jennifer Dalven, said she had no problem with the other parts of the law. And the new chief justice hinted at a compromise letting New Hampshire doctors sue to secure a medical exception without invalidating the whole law.

That left the associate justices free to pursue their own interests. Antonin Scalia tested out some doctor jokes. "You can have a good-faith quack," he pointed out.

Breyer played the ingenue, referring to an answering machine as "you know, one of those things, leave a message."

Thomas spent the session reading and staring at the ceiling.

The only person out of character was Solicitor General Paul Clement, who, momentarily forgetting the Bush administration's distaste for "legislating from the bench," found himself telling the justices: "I think the court could issue any order a legislature could issue."

The emerging consensus in the courtroom did nothing to calm the combatants in the plaza, who raced to the cluster of microphones with their postgame analyses.

"They are poised to throw out the abortion lobby's strategy!" exulted Cathy Cleaver Ruse of the Family Research Council.

"We were gratified to hear that the court cared very deeply that women should be protected," countered Karen Pearl, head of Planned Parenthood.

Activists from both sides -- three from the Family Research Council alone -- elbowed their way to the microphones. Antiabortion hecklers interrupted the abortion-rights speakers, and the session quickly deteriorated into shouting, as rival camps circulated dueling news releases. "Can we hear from the lawyers, please?" an exasperated reporter called out.

Dalven, reaching the microphones first, declined to join the hysteria. "We are hopeful," she reported.

Ayotte followed the tasteful example. "We are hopeful," she announced.

The lawyers moved on, and two dozen activists, including the guy in the "Repent All Sinners" T-shirt shouting biblical verses, resumed their pushing to get a turn at the microphone.

Visible behind them was the Supreme Court facade -- and a Denka-Lift construction device brought in to restore the crumbling Order.


© 2005 The Washington Post Company

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