Justices to Hear Abortion, Integration Cases

'Partial-Birth' Procedure and Schools' Race Policies to Dominate Court's Agenda

Chief Justice John G. Roberts Jr. and the eight associate justices are to open a new Supreme Court term tomorrow that will be closely watched. (By Chris Greenberg -- Bloomberg News)

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."