Miers Could Tip the Scales

If Harriet Miers wins confirmation to a seat on the Supreme Court this fall, she may arrive in time to cast the deciding vote in a controversial case involving parental notification of minors seeking abortion.

But even if Miers does take the seat in time to hear the case, some suggest that for ethical reasons she may take a pass and not weigh in on it.

That's because, as White House counsel, she ostensibly already has. In August, Bush's solicitor general, Paul Clement, submitted a friend-of-the-court brief in support of a state parental notification law that is being challenged because it lacks an exception for the health of the pregnant woman.

The brief supported the law and faulted the challengers. It argued that "the statute was not required to contain an express health exception and contained a sufficient life exception."

The brief was filed during Miers's tenure as Bush's counsel, a position charged with the responsibility of advising Bush on all legal issues concerning the White House and the president. Consequently, Miers may come under pressure to recuse herself from the case if she is confirmed and hears the case, some said. Usually, all the justices sit in on all oral arguments and consider all cases the court agrees to review.

"As White House counsel, she was in close relationship to the attorney that signed on to the amici brief filed by White House," said Jessica Oski, director of public affairs at Planned Parenthood of Northern New England, based in Williston, Vt. "While her name is not on the brief, there's no question she was close to the president and part of his team of legal advisors."

Miers Nominated

On Oct. 3, President Bush nominated Miers to fill the seat being vacated by retiring Justice Sandra Day O'Connor, a moderate and an abortion rights supporter. O'Connor has said she will step down after her successor is confirmed.

This term, in addition to the parental notification law, the Supreme Court is expected to hear cases that have worked their way up through the legal system on whether a federal anti-racketeering law can be used to stop protesters from blocking abortion clinics and whether a law banning on a procedure opponents call "partial birth" abortion is constitutional.

Many states beside New Hampshire have passed parental notification laws. In California, Proposition 73 on the November special election ballot proposes a parental notification amendment to the state constitution.

Uncertainty about how Miers might vote on cases that challenge abortion rights has given those on both sides of the issue cause for concern.

Jan LaRue, chief counsel of Concerned Women for America in Washington, D.C., which opposes abortion, released a terse statement on Monday. "Whether we can support her will depend on what we learn from her record and the hearing process."

Kim Gandy, president of the pro-choice National Organization for Women in Washington, D.C., was also wary. "This is the fifth vote," she told Women's eNews. "This is the swing vote. This is the O'Connor seat." She added she would not want to see an "empty" suit in such a pivotal position. "There's too much at stake."

Stalemate Scenario

A Miers recusal in the parental notification case could lead to a 4-4 stalemate, which would uphold lower court rulings nullifying the law. This could hand a surprise victory to reproductive rights advocates at a time when their opponents have tightened their grip on the judicial, legislative and executive branches of government.

"You could make a case about why ethically it would make sense," said Vicki Saporta, referring to the possibility of a Miers recusal. "That would certainly help (abortion rights advocates) prevail in that case." Saporta is president of the National Abortion Federation, a network of abortion providers based in Washington, D.C.