How will justice nominee shape abortion debate?

If confirmed to the U.S. Supreme Court, John Roberts Jr. would get chances to weigh in on the issue immediately.

By Mike Norbut — Posted Sept. 12, 2005

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Doctors have diverse opinions about abortion, but one thing on which they can agree is that they don't know for sure where U.S. Supreme Court Justice nominee John Roberts Jr. stands on the issue.

In July, President Bush nominated Roberts to fill the seat left open when Justice Sandra Day O'Connor announced her retirement. Roberts' voting record on many issues, including abortion, is considered to be unknown. It has left conservatives and liberals wondering exactly where he would fall on the political spectrum if confirmed for the bench.

With two abortion-related cases on the Supreme Court's fall docket and others moving through the federal courts, Roberts quickly would have a chance to show where he stands on one of America's hot-button topics.

Joseph DeCook, MD, an ob-gyn in Holland, Mich. and vice president of the American Assn. of Pro Life Obstetricians and Gynecologists, said the association did not have a position on Roberts and his qualifications for the Supreme Court. However, Roberts' thoughts on abortion, whatever they may be, "certainly should not be a constitutional litmus test this way or that way," he said.

Wendy Chavkin, MD, MPH, who serves as chair of the New York-based Physicians for Reproductive Choice and Health, said she is worried that the court could overturn the landmark Roe v. Wade decision that legalized abortion. But she said at this point it's unclear how Roberts would rule.

"There are various hints out there that he may be committed to anti-abortion stance, but we'll have to await the confirmation hearings to see what he'll say in any detail," said Dr. Chavkin, a professor in the School of Public Health and ob-gyn department at Columbia University in New York.

Whether physicians agree or disagree with the court's Roe v. Wade decision, changes to abortion laws or future court decisions undoubtedly will impact a doctor's professional and ethical perspective, experts said.

Although most physicians don't perform abortions, issues tied to the procedure, such as patient privacy, medical evidence and waiting periods before a procedure is performed, can challenge how physicians generally practice, Dr. Chavkin said.

"I am concerned about an increasing wave of restrictions and how it can intrude on the practice of medicine," she said. "It's important that physicians understand that this intrusion opens the door" for courts to further restrict medical practice.

Since the Roe v. Wade case in 1973, anti-abortion advocates have worked to overturn the decision or render it powerless by returning jurisdiction to individual states, said Jamin Raskin, a constitutional law professor at American University in Washington, D.C.

He said he doesn't expect Roberts to disclose his intentions on the issues during the confirmation process. Raskin said he believed Roberts would say it wouldn't be appropriate to comment on the issue with abortion cases already on high court's docket. "He will definitely refuse to be pinned down," Raskin said.

But Roberts would be called on for an opinion soon enough, given the Supreme Court's upcoming schedule. In Ayotte v. Planned Parenthood of Northern New England et al., the high court will review an appellate court decision that struck down a 2003 New Hampshire notification law. The law required doctors to inform a minor's parent at least 48 hours before an abortion unless the patient had a court waiver or would die before the parental notification could take place.

The 1st U.S. Court of Appeals in Boston said the law didn't contain an explicit exception for preserving a woman's health.

The Supreme Court also has agreed to hear Scheidler et al. v. National Organization for Women Inc. et al., a case involving protests outside abortion clinics. It pits NOW against the Pro-Life Action League and its national director, Joseph Scheidler, asking if abortion clinic protestors should be held accountable for actions under federal anti-racketeering and anti-extortion laws.

In 2003, the Supreme Court ruled that protesters could not be held accountable for their actions under the two federal laws dealing with those issues, but an appeals court had further questions about the ruling.

Looking ahead

While the Supreme Court is prepared to review two abortion-related cases this year, legal experts also expect it to review what is commonly known as the federal Partial-Birth Abortion Ban Act at some point.

Federal judges in New York, San Francisco and Nebraska have found the law unconstitutional because it does not include an exception that considers a woman's health. Earlier this summer, the 8th U.S. Circuit Court of Appeals upheld the Nebraska federal judge's ruling that the law was unconstitutional. At press time, the federal government had not appealed that ruling. The New York and San Francisco cases are still on appeal to the circuit courts for those areas.

"Partial-birth abortion" is a nonmedical term lawmakers and some opponents use to refer to intact dilatation and extraction. The danger of the law, from some physicians' perspective, is that "it would substitute a doctor's medical judgment with a prosecutor's," said Lucinda Finley, a law professor and vice provost for faculty affairs at the University at Buffalo, State University of New York.

In 2000, the U.S. Supreme Court ruled in Stenberg v. Carhart that Nebraska's ban on late-term abortion was unconstitutional because it did not provide an exception to preserve the mother's health and that it was so broadly worded that it affected a woman's basic right to an abortion. The ruling was 5-4, with O'Connor siding with the majority. Consequently, one new justice could have a dramatic effect on the court's opinion, Finley said.

"It's not at all certain the Supreme Court would take these cases," Finley said. "If they do take them, they are cases in which replacing Sandra Day O'Connor with John Roberts might well change the outcome."

The American Medical Association has policies on abortion, among them that abortion is a medical procedure that should be performed by a "duly licensed physician and surgeon."

The AMA also says abortion is a matter for physicians to decide "individually, based on personal values and beliefs."

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On the federal horizon

  • A U.S. District Court judge in South Dakota in June issued a temporary injunction against a new South Dakota law that requires doctors to discuss with women requesting an abortion that they would be terminating a baby's life. The statute, that took effect July 1, also requires doctors to discuss the risks and possible side effects of abortion, including suicide. A hearing for a permanent injunction is scheduled for October.
  • A 4th U.S. Circuit Court of Appeals panel in June struck down a Virginia law that banned late-term abortions, ruling that the measure did not include an exception to protect a woman's health. The 2003 law made it illegal for health centers to perform a dilation and evacuation abortion procedure. Virginia Attorney General Judith Williams Jagdmann has asked the full panel of judges in the circuit to review the ruling.

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