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Justices agree to hear abortion case

Court-watchers eager to see how Alito and Roberts rule

WASHINGTON -- The Supreme Court yesterday announced it would hear a case challenging a federal ban on the late-term abortion procedure that opponents call ''partial-birth abortion," setting up the first major test of abortion law since Justice Samuel A. Alito Jr.'s confirmation last month.

The justices agreed to review a lower-court ruling that declared the federal Partial-Birth Abortion Ban Act of 2003 unconstitutional because it lacked an exception for cases when a pregnant woman's health was in jeopardy. Abortion activists said the case, which will be argued next fall, could inflame the culture wars that were on display during Alito's confirmation hearing.

In 2000, the court voted 5-4 to strike down a Nebraska ban on the same procedure because the law had no exception for the woman's health. The deciding vote was cast by now-retired Justice Sandra Day O'Connor, whom Alito replaced last month. In the current case, the court could overturn that ruling.

''The Supreme Court's decision to hear this case is a dangerous act of hostility aimed squarely at women's health and safety," said Cecile Richards, president of Planned Parenthood Federation of America. ''Despite 33 years of Supreme Court precedent that women's health matters, the court has decided it will once again take up this issue."

But Jan LaRue, chief counsel of Concerned Women for America, a conservative Christian antiabortion group, said that the change in the Supreme Court's line-up made it appropriate to reconsider the issue.

''We're gratified to hear the court [will hear] the case, because in 2000 the case was lost by a one-vote margin," LaRue said. ''Now with the departure of O'Connor and the addition of Alito . . . I think there's good cause to expect a different ruling."

In 1985, as a Reagan administration attorney seeking a promotion, Alito wrote that he did not believe that the Constitution protects a right to an abortion. He declined to disavow that view during his contentious confirmation hearing, but also pledged to respect the principle that past rulings should not be overturned lightly.

Activists said they would closely watch Alito's actions to see how he honors his promises during the confirmation hearing. They will also be closely monitoring Chief Justice John G. Roberts Jr., who last fall replaced the late William Rehnquist.

In his past writings, also as a Reagan administration attorney, Roberts had described abortion as a ''tragedy," though he never went as far as Alito in expressing a personal disagreement with abortion law. During his hearings, Roberts, like Alito, declined to say how he would rule on abortion cases, but emphasized the importance of following precedent as a general rule.

Susan Low Bloch, a constitutional law professor at Georgetown University, said the case will be the first test of how Bush's two appointees will handle a case that touches on Roe v. Wade, the 1973 decision declaring that the Constitution prevents the government from outlawing abortion.

''We know that Alito has been opposed to Roe," Bloch said. ''We know less about Roberts's views, but we suspect that he may not be a Roe supporter. This case can give us an interesting indication of their feelings about precedent and their feeling about abortion generally."

President Bush signed the Partial-Birth Abortion Ban Act three years ago, but it has never been enforced. In separate cases, three federal appeals courts have ruled that the law is unconstitutional because it lacks the exception for the woman's health. Legal specialists said it is rare for the Supreme Court to take a case involving an issue that it recently decided and that has not generated split decisions among lower courts.

Last fall, the court heard a case involving a challenge to a New Hampshire law that requires minors to notify a parent before obtaining an abortion. The New Hampshire notification law, like the federal Partial-Birth Abortion Ban Act, had been struck down by a US appeals court because it contained no health exception.

In January, the Supreme Court unanimously sent the New Hampshire case back to lower courts with instructions to consider whether they could issue a more narrow ruling -- holding that the notification requirement would not apply in a health emergency -- rather than invalidating the entire law because it omitted a health exception.

But LaRue said such an outcome would be less likely in the Partial-Birth Abortion Ban Act case because Congress deliberately omitted a health exception. Supporters of the law claimed that women's health could be protected by using other abortion procedures in an emergency. Courts generally cannot interpret laws in a way that would violate the expressed intent of lawmakers.

Abortion-rights supporters said yesterday they would use the case as a rallying cry in the 2006 and 2008 elections. The retirement or death of one more justice who has voted to support abortion rights, as O'Connor did, could raise the prospect of a new conservative majority willing to overturn Roe v. Wade, they said.

''Today's actions by the court are a shining example of why elections matter," said Richards. ''When judges far outside the mainstream are nominated and confirmed to public office by antichoice politicians, women's health and safety are put in danger."

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