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Joan Biskupic
August 31, 2005

Joan Biskupic is the author of  a forthcoming biography on Sandra Day O'Connor to be published by HarperCollins. She has covered the Supreme Court since 1989.  Before joining USA TODAY in June 2000, she was the Supreme Court reporter for the Washington Post (1992-2000) and legal affairs writer for Congressional Quarterly (1989-1992). Biskupic holds a law degree from Georgetown University. (Read Joan Biskupic's bio)

Q: What abortion-rights cases are expected to come under the Supreme Court's review in the fall? What do Americans think of abortion restrictions? Can you tell from past cases how the justices will approach this type of case?

One abortion case already has been accepted for high court review this term and another is headed its way. In November the justices will hear arguments in Ayotte v. Planned Parenthood of Northern New England. The case will test whether states that require a pregnant underage girl to notify a parent before having an abortion must have an exemption when the girl's health is at risk. A federal appeals court struck down the law, saying it could endanger minors who need an immediate abortion for health reasons.

Separately, a constitutional test of a federal ban on the abortion procedure that critics call "partial birth" may soon be at the court. In July a federal appeals court invalidated that ban, which Congress passed in 2003. Again, the lower court cited a need for a health exception. The case, Carhart v. Gonzales, could end up appealed to the Supreme Court.

Regarding public opinion on abortion, polls show that a majority believe abortion should be legal but with state regulations. The key question is how far that regulation can go, given that the Supreme Court has said governments cannot put an "undue burden" on a woman's right to end a pregnancy.

Finally, I cannot predict what the Supreme Court will do on these questions, but I can say that many abortion cases in recent decades were decided by a single vote.

Q: Judge Roberts made some controversial comments about women's rights in his earlier documents. From your informed perspective, did many of his remarks seem like light-hearted jokes or do they reflect a deeper judicial philosophy? How are they received by senators, especially women senators?

Roberts' writings from his Reagan years showed a resistance to policies intended to give women a break in the work force or spur better pay. He also, at times, appeared to adopt a mocking tone toward women's rights advocates. In some instances, he was criticizing ideas that were not widely embraced within the administration or by the public generally. For example proposals for "comparable worth," which involved the notion of equal pay for different jobs of comparable value, based on factors such as skills and responsibility, never went anywhere.But Roberts also sought narrow readings of Title IX, a highly touted law that prohibits sex bias in schools receiving federal funds and that has created many opportunities for young women in sports.

Further, the flippant tone of some of Roberts' memos regarding women's rights has drawn concern. Sen. Olympia Snowe, a Republican from Maine, happened to be a subject of one of his derisive memos (as a member of the House of Representatives in 1984 she advocated new ways to raise women's pay). Snowe said recently that she hoped that now - more than two decades later - Roberts' consciousness had been raised. I'm sure senators will probe Roberts' views toward women and programs intended to end sex bias.

I have to add that this is an area of the law in which John Roberts might stand in sharp contrast with Justice O'Connor, who was always on the watch for ways to overcome discrimination toward women.

Q: One high-profile issue-advocacy group, NARAL Pro-choice America, got a lot of attention earlier this month when the group rolled out a TV ad sharply critical of Judge Roberts. In recent days the group began running a new, milder anti-Roberts spot. What was behind the switch? Should TV viewers nationwide expect to see more ads, both for an against confirmation of the nominee, to hit the airwaves once the hearing opens?

The first ad focused on Roberts' actions when he was deputy U.S. solicitor general in the George H.W. Bush administration and had argued that abortion protesters could not be sued under a civil rights law for blocking women's access to clinics. The Supreme Court agreed with the argument. The NARAL ad implied that Roberts was sympathetic to those who engaged in violence at clinics. Conservatives denounced the rhetoric and even some Democrats and abortion rights advocates said it crossed the line. Politically, the ad backfired by putting NARAL, rather than John Roberts, under attack.

I think TV viewers will be seeing a few more ads as interest groups begin announcing their opposition, or support, for the nominee.

Q: How is Judge Roberts preparing for his confirmation hearing? How are the senators getting ready for it? And what about reporters who cover the high court?

Everyone is reading up on past cases. The nominee wants to be ready for all conceivable questions. Senators want to be able to make intelligent, relevant queries about the law. And reporters want to understand the legal context of our times, particularly areas of the law in which a single vote could make a difference. Administration officials are looking at how earlier nominees handled questions, considering the potential flashpoints. John Roberts is engaging in mock hearings and, as nominees in the past have done, preparing language designed to answer senators' queries but not be so elaborative that he risks new opposition. The hearings will be televised, so he will also, in effect, be speaking to the American public.

 

 

 

 

 

 

 

 

 

 

 

 

 

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