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In new term, Supreme Court may steer to right on key social issues

The Supreme Court's conservative bloc has a clear chance to shift the law to the right on abortion, contraception, religion and campaign funding.

October 06, 2013|By David G. Savage
  • Supreme Court justices gather for a portrait. A conservative bloc on the court will have a clear chance in the fall term to shift the law to the right on key social issues such as abortion, contraception and religion.
Supreme Court justices gather for a portrait. A conservative bloc on the… (Bill O'Leary / Washington…)

WASHINGTON — The Supreme Court term that opens Monday gives the court's conservative bloc a clear opportunity to shift the law to the right on touchstone social issues such as abortion, contraception and religion, as well as the political controversy over campaign funding.

If the justices on the right agree among themselves, they could free wealthy donors to give far more to candidates and parties and clear the way for exclusively Christian prayers at local government events.

In other cases due to be heard this fall, the justices are likely to uphold state bans on college affirmative action and block most housing bias claims that allege an unfair impact on blacks and Latinos.

They may also give states more authority to restrict and regulate abortion.

The justices are being asked to hear cases from Oklahoma in which they could uphold limits on the use of the abortion pill and require pregnant women seeking abortions to undergo ultrasound tests to see the fetus. And last month, Arizona's attorneys asked the court to uphold the state's ban on abortions after 20 weeks of pregnancy, a measure that was blocked on the basis of Roe vs. Wade.

By next spring, the justices are likely to revisit part of President Obama's healthcare law to decide a religious-rights challenge to the requirement that large private employers provide their workers with coverage for contraceptives. Dozens of employers who run for-profit companies have sued, contending that providing health insurance that includes a full range of contraceptives violates their religious beliefs.

The upcoming term "is actually deeper in important cases than either of the last two terms," said Irving Gornstein, executive director of the Supreme Court Institute at the Georgetown University's law school.

The last term ended in June on a winning note for liberals, when the court handed down two victories for gay marriage. They included a 5-4 opinion by Justice Anthony M. Kennedy giving legally married same-sex couples an equal right to federal benefits.

In recent years, gay rights advocates have pushed cases toward the high court, confident that Kennedy and the four justices on his left would rule in their favor. Last week, Ted Olson and David Boies, the attorneys who led the challenge to California's Proposition 8, filed suit in Virginia, hoping to force an eventual ruling on whether gay marriage is a constitutional right.

Advocates on the right are using the same strategy.

They have been pushing cases toward the court confident that Kennedy will join the four conservatives to rule in their favor on religion, affirmative action, campaign finance and abortion. In their legal briefs, they argue for broad rulings and a significant shift in the law. Because they believe Kennedy is on their side, they "think they have the wind at their back," said Pamela Harris, a Georgetown professor and former Justice Department lawyer.

So far, the only abortion-related case on the court's docket tests a Massachusetts law that sets a 35-foot buffer zone around the entrances to abortion clinics. It is being challenged as a free-speech violation by Eleanor McCullen, a 74-year-old grandmother who seeks to talk to women before they enter a Planned Parenthood clinic in Boston.

In 2000, over vehement dissents from Kennedy and Justices Antonin Scalia and Clarence Thomas, the court upheld an 8-foot buffer zone in Colorado. The new case, McCullen vs. Coakley, to be heard in January, gives the court under Chief Justice John G. Roberts Jr. a chance to restrict buffer zones to 8 feet or, as the advocates propose, reject them entirely.

Kennedy signaled the potential for a major shift on abortion regulation six years ago. He spoke for a 5-4 majority to uphold the federal ban on "partial-birth abortions" and declared the "government has a legitimate and substantial interest in preserving and promoting fetal life."

Antiabortion lawmakers read this as an invitation to enact new restrictions. "Justice Kennedy's opinion was a foundation changer," said John Eastman, a Chapman University law professor who appealed the decision striking down Arizona's 20-week limit on abortions. "We're optimistic this will force the court to confront the issue of fetal pain."

Since 2010, Arizona and 12 states have adopted bans on abortion after 20 weeks, citing "scientific evidence of fetal pain." Some of these states have adopted laws mandating ultrasound tests for patients seeking abortions and requiring costly changes in clinic facilities.

Although some measures have been blocked by federal judges, the goal was to get the issue to the Supreme Court.

It will be many months before the court decides whether it will take up an abortion regulation, but leaders of the antiabortion movement are hopeful. The Arizona appeal "may well be the case that leads the Supreme Court to examine and acknowledge the risk of abortion to women," said Charmaine Yoest, president of Americans United for Life.

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