'Culture war' issues of race and abortion await justices

'Culture war' issues of race and abortion await justices
By Patti Waldmeir
Copyright The Financial Times Limited 2006
Published: October 2 2006 03:00 | Last updated: October 2 2006 03:00



The new Supreme Court of Chief Justice John Roberts could be about to show its colours on contentious social issues such as race and abortion.

The justices will face two potentially explosive "culture war" issues. What limits can be placed on a woman's right to abortion without violating the US constitution and triggering a backlash from the court that created that right in its 1973 ruling, Roe v Wade? And how much can public high schools do to integrate their student population, without running foul of the constitution and the court?

The justices are faced with the choice of limiting or overturning two recent precedents upholding abortion rights, and programmes designed to create a racially diverse student body. If they do, it could signal a dramatic rightward shift in the court, which has two new members appointed by President George W. Bush.

These cases "could tell us a little bit about the soul of the Roberts court", says Steven Shapiro, legal director of the American Civil Liberties Union (ACLU). Both prior precedents were decided by a 5-4 majority, with the now-departed swing justice, Sandra Day O'Connor, casting the deciding vote.

The court will hear two abortion cases that ask whether a federal law that prohibits a certain abortion procedure is unconstitutional because it makes no exception for a threat to the health of the mother. That law, the Partial-Birth Abortion Ban Act, flies in the face of a 2000 precedent in which the court struck down a similar Nebraska abortion law. How the new justices rule in the case could reveal far more than their views on abortion: it could reflect their willingness to strike down other court precedents as well, in a wide range of areas beyond social issues.

Both new justices are in an awkward position: in their confirmation hearings they promised not to overrule past precedents lightly; but neither thinks the court should set social policy for the country single-handed, especially in cases where Congress has already passed a law on the matter (as it has in the abortion case).

The race cases involve public schools that use race as a primary, or in some cases the only, factor in assigning students.