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Holding Court with Joan Biskupic

Holding Court
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Friday, April 7, 2000; 11 a.m. EDT

The debate over what critics call "partial birth" abortion returned to Capitol Hill this week, just as the Supreme Court itself is preparing to take up the constitutionality of laws banning the controversial abortion procedure. Scores of groups have submitted briefs to the high court in the case, urging the justices to strike down Nebraska's ban on "partial birth" abortions or, alternatively, to uphold the technique that has stirred passions nationwide. Join "Holding Court" this week as we look at the abortion debate, including the justices' rejection Monday of the Clinton administration's request to present arguments in the case (against the ban). And as always, questions on other court topics are welcome, too.

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EDT. The transcript follows:

Joan Biskupic: The abortion case is three weeks away but most of the written briefs are in, and there's nothing timid about them. From supporters of the Nebraska ban on what it calls "partial birth" abortions there are cries of infanticide. From opponents of the law are claims that the "partial birth" ban is nothing short of an effort to overturn Roe v. Wade and outlaw all abortions. So ask about abortion, the big Miranda case that will be up first when the justices return, or anything else.

San Angelo, Tex.: Does the Nebraska abortion law to be considered by the Supreme Court this month allow a D&X procedure in case of a fetus that is dead, or expected to die, or does it consider only the welfare of the mother?

Joan Biskupic: The wording of the Nebraska statute is fairly broad but it does refer to a "living unborn child" that is "partially delivered," and it has no exception for the health of the mother.

Bellevue, Ky.: In January, the court revisited its decision in Anders v. California in its opinion in the case Smith v. Robbins. In it, the court said that the Anders requirements were not themselves constitutional rights, that they were mere prophylaxis, and that the states were free to construct their own procedures to protect the underlying constitutional rights that Anders sought to safeguard. Do you think that this opinion might give some insight into what the court may do in Dickerson with Miranda?

Joan Biskupic: Very interesting question. The case you refer to tested the constitutional guarantee of effective assistance of counsel and a 1967 decision requiring a court-appointed lawyer who believes his client's appeal lacks merit to nonetheless file a brief identifying potential issues that might support an appeal. By a 5-4 vote in January, the court loosened that requirement and said the procedure in the '67 case was only one way of satisfying the Constitution's requirements for indigent criminals. ... So your question is apt: Will the court say the Miranda warnings (you have the right to remain silent, etc..) are only one way of satisfying the constitutional guarantee that suspects be protected against self-incrimination?

The anti-Miranda lawyers believe the Smith v. Robbins case helps their side, but I spoke this week to some of the law professors who are vigorously defending Miranda's constitutional underpinnings. They think the Smith case can be differentiated, that Miranda is in a different class and that this court will decide (perhaps by one vote) to uphold the warnings requirement as the ONLY way to enforce the 5th Amendment. There is a lot at stake in this case, for police, for suspects in custody, for a 34-year-old signature ruling of the Warren Court.

Houston, Tex.: Joan,
This might be too simple of a solution, but why can't the Texas school allowing school prayer just replace the prayer time with a moment of silence?

Joan Biskupic: Hmmm. They could, but the court would be interested in the school officials' motives. Back in 1995, the justices struck down an Alabama law that permitted a moment of silence at the beginning of each school day. They looked at the legislative history and said the law plainly was designed to endorse religion, that it was an attempt (failed attempt) to get around the court's 1962 landmark against school prayer.

Concord, Calif.: How will any forthcoming decision affect those of us in states, like California, where we have an enhanced (state) constitutional right to privacy?

Joan Biskupic: I don't think your state constitution would offer more privacy rights than the federal Constitution for abortion, which is the big privacy dilemma coming up this month. But your point is interesting. The federal Constitution is, in effect, a baseline, or minimum. States are free to go beyond it in protecting individual rights. ..... In fact, in recent disputes over whether certain homosexual acts between consenting adults are shielded from state criminal laws, state constitutions have been more protective of private sexual behavior than the U.S. Constitution.

San Angelo, Tex.: Is there an Internet source where I can find the text of the Nebraska abortion law?

washingtonpost.com: You can find the full text of the 8th Circuit opinion of Stenberg v. Carhart in our Supreme Court Resources section.

Joan Biskupic: Yes, look there... and you'll see see why the law has been difficult for lower courts to interpret.

Albany, N.Y.: When do you think the court will hand down its decision on Brzonkala v. Morrison? Do you think it will follow in the Lopez tradition? It was argued in mid-January, now that it's nearly mid-April do you think the court is having some difficulties reaching a consensus? If so, where (whom) is the friction coming from, in your opinion? Do you think the court's recent decision to deny the federal government oral argument time for the partial birth case (specifically a state's rights issue this time) an indicator of how the Morrison case will fall?

Joan Biskupic: I'll take your last question first. No, I don't think the government's defense of the Violence Against Women Act, at issue in the Morrison case, had anything to do with the solicitor general being denied time in the abortion case. My sense is that the majority of the justices didn't think the federal interest in the state abortion dispute was great enough to let the SG in. I also think the justices might have wanted to avoid further politicizing the dispute this election year. (Whether this was fair or not is open to question, since the Bush administration SG got to argue against abortion in '92, another election year.) ... It's anybody's guess why we haven't seen on ruling on VAWA yet. But the time since oral arguments hasn't been that long... Remember, there are still cases from Oct., Nov., Dec. awaiting rulings.

washingtonpost.com: Joan, have there been any briefs filed in the late-term abortion case? In a discussion yesterday, Sen. Rick Santorum (R-Pa.) said that the American Medical Association has said that certain types of late-term abortion are never medically necessary. Are you expecting that to be part of the argument?

Joan Biskupic: Yes, dozens of briefs have been submitted from scores of groups, many of them with medical interests. But they're not all on the same side. An AMA official has said "partial birth" abortions should rarely be performed, and that position is backed up by many medical groups siding with Nebraska and led by the Association of American Physicians and Surgeons. BUt, the American College of Obstetricians and Gynecologists and other groups say that physicians should be able to determine (without state interference) what procedure is best for a pregnant woman. This latter group says the Nebraska law is "hopelessly vague" about what procedures are forbidden.

Batesville, Ark.: Given the clear and scholarly rendering by Judge Sam Cummings in the Emerson Case and the court's ruling in U.S. vs. Miller, do you think the court will strike Brady on military use infringement grounds? With gun control all over the map in both directions, why would the court duck this chance to render specific guidelines on what is and is not permissible control by the federal and state governments?

Joan Biskupic: You're referring to the Emerson case now before the 5th Circuit. This is the one in which a trial judge said there is an individual right to gun ownership in the Second Amendment... The 1939 Supreme Court ruling in Miller said there wasn't and since then most federal courts have ruled against an individual right to bear arms. This is obviously a very controversial issue... and the truth is that until the Texas trial court ruling in Emerson last year, there was no conflict for the Supreme Court to clear up. So the court kept rejecting cases, which is what I expect it to continue doing in the near future. ... Also, remember even if a court rules that there is some Second Amendment right to own a gun, it wouldn't be an absolute prohibition on state and federal firearms laws.

washingtonpost.com: FYI, more information about the Nebraska abortion law case, from the Nebraska Department of Justice Web site:

Petition for Writ of Certiorari
Reply to Brief in Opposition
Brief of Petitioners

Jacksonville, Fla.: On Monday, the court denied cert. in six separate cases dealing with various zoning-licensing restrictions on adult entertainment. These cases were obviously being held pending the Erie decision, but Erie was solely concerned with a public indecency ordinance. Do you think Erie tells us anything more than Barnes did, and what effect, if any, do you think the opinion will have for adult entertainment regulations?

P.S. Do you know of any case in which the Supremes have granted a petition for rehearing?

Love your forum!!

washingtonpost.com: FYI:

Full text: City of Erie et al. v. Pap's A.M. (2000) (FindLaw)
Full text: Barnes v. Glen Theatre, Inc. (1991) (FindLaw)

Joan Biskupic: Thanks for the questions. First the easy one, no, in my decade covering the court, I've never seen the justices grant a rehearing request. And on nude dancing... lower courts handling those six separate cases will have to look at the high court's rationale, specifically its holding (spread out among the various opinions) that municipalities can restrict nude entertainment based on its negative "secondary effects," that is, public drunkenness, prostitution, other crime, lower property values, etc... So, the lower courts will have to figure out whether the cities in question had sufficient grounds to justify their bans. ... You refer to the Barnes ruling in 1991, which was pretty convoluted. The new one isn't a model of clarity, but the court did produce five votes for a single standard. Maybe we're not done with nude-dancing yet!

Bethesda, Md.: Lest anyone lose focus here, the issue we're discussing is the termination of a baby's life and, according to the AMA, a medically unwarranted procedure. Opponents of a ban of "partial-birth abortion" may claim it's the camel's nose under the tent, but can they be so ideologically blind to the reality of the operation? To me, a staunch pro-lifer, allowing partial-birth abortion is the camel's nose in the other direction, a first step toward unrestricted abortion anytime, and that makes me physically ill. Legally speaking, isn't the theory that abortion is covered under the privacy clause of the Constitution the most specious reasoning of all time? Following that line of logic, we should also have no laws against suicide, drug use, or incest. Give me a court that bans abortion outright, and I'll die a happy man.

Joan Biskupic: I'll let your vigorous comments speak for themselves.

Fredericksburg, Va.: Would you mind taking a very complicated question I have been trying to find an answer to for years? The Supreme Court this week agreed to take the case involving the strategies the Legal Services Corporation may use to represent its indigent clients. I understand this case could drastically affect how Congress and other representative bodies can attach strings to money they give groups. Given how prevalent government funding is to so many of society's schools, businesses, and other organizations, is there any chance the Supreme Court might begin a shift in opinion towards pulling back the power of the government to dictate organizations' operations and policies when receiving its funds? One potential case I could conceivably see in the far future would be a conflict over how government could dictate the educational policies of private and parochial schools accepting vouchers. Any predictions (however tentative) would be IMMENSELY appreciated!

Joan Biskupic: It's a complicated question, and I'm afraid I don't have any great insight. Right now schools that accept federal money have to abide by many conditions, for example the anti-discrimination provisions of Title IX. The court has generally given Congress great latitude in attaching strings to its money. But I can't imagine any scenario in which the court would allow Congress to tie voucher money to policies that might infringe on parochial school policies. First, public vouchers for private schools may not be upheld, and Congress might not ever want to fund such programs. But even if that happened, the constitutional protections for religious freedom would certainly limit Congress's ability to affect policy in parochial schools.

Washington, D.C.: Was the FDA tobacco decision an expected outcome, given the justices' dislike for more government power and control?

Joan Biskupic: It was an expected outcome, but mostly because of the history of the statute at issue. The FDA had long said it didn't have the power to regulate tobacco under the law. During oral arguments, justices had focused on that history, the wording of the statute and several other acts of Congress that suggested federal lawmakers didn't want the FDA to control how cigarettes are sold and marketed.

Reston, Va.: I wish to know when – or if – you plan to do a story based on the op-ed story by Ronald Rotunda, a former legal consultant to the OIC, dealing with the alleged improprieties at the Federal District Court. Rotunda charges that Judge Normal J. Holloway has been stripped of her authority to appoint judges because of highly improper actions in selecting Clinton-appointed judges to sit as hearing judges in several cases involving illegal fund raising activities.

I hope to hear from you on this matter.
Salutem plurimam dicere.

Joan Biskupic: I will not be writing about this. It's not in my bailiwick. But no doubt if the controversy continues .... others will take it up.

N. Bethesda, Md.: In regard to the anticipated lawsuit between Virginia and Maryland over the Potomac River water rights, do you think any of the nine justices will recuse themselves from the case because they reside in Maryland or Virginia? I don't think all of the justices reside in the District of Columbia.

Joan Biskupic: A couple of them do live in the District, but not all, certainly. I don't expect any of them to recuse themselves. Scalia's from New Jersey and Ginsburg is from New York, and neither of them recused themselves in the fight between those two states over Ellis Island. I don't think where they're from or where they live now truly prejudices them in the dispute.

Beresford, S.D.: Have you an opinion you can share regarding the court's reliance on precedent in making decisions? If so, please tell us what you think. Thanks.

Joan Biskupic: The court relies heavily on precedent. It's a guiding principle of its work. And I think that is a good thing. We usually know where they're headed.

Chicago, Ill.: A few weeks ago when trying to decide whether to file a petition for rehearing after denial of a certiorari petition, I phoned the court clerk’s office and asked whether the court ever grants petitions for rehearing. The person I spoke with said, in essence, that it does not; she said the court had never granted one during her 10-year employment there. This made me wonder whether petitions for rehearing are even read by anyone there or are, instead, as I suspect, simply placed into the record and never opened. Do you have any indication that anyone there actually reads them? I filed the petition anyway, but, particularly given that a separate filing of $200 is required to file a rehearing petition, I think it would be useful to others to know whether they should use the money to buy, say, lottery tickets, instead.

Joan Biskupic: As I mentioned to the earlier writer, I've never seen the court grant a petition for rehearing. Good luck in the lottery.

Joan Biskupic: And that's it for today. Thanks to all who participated. And sorry to those whose questions were left pending. Eventually we'll get to all of 'em. But keep those general-interest questions coming and sound off about anything next week.

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