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."
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."
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.
At issue is a 2003 New Hampshire law that bars physicians from performing abortions on minors whose parents or legal guardians are not notified in writing at least 48 hours in advance of the procedure. Under the New Hampshire law, the notification requirement can be waived for minors whose lives are endangered by pregnancy or for those who receive special permission from a judge, according to NARAL Pro-Choice America, an abortion rights advocacy group in Washington, D.C. There is no exception for young women whose health is at risk or for victims of rape, incest or child abuse.
Planned Parenthood Lawsuit
After then-Gov. Craig Benson signed the New Hampshire bill, Planned Parenthood of Northern New England sued the state, arguing that the law is unconstitutional because it lacks an exception for the health of the pregnant woman.
Two lower courts have since agreed, prompting New Hampshire Attorney General Kelly Ayotte to appeal the case to the Supreme Court.
The law has not yet taken effect due to the legal proceedings. Justices have agreed to hear the case on Nov. 30, around the time Republicans hope to have a floor vote on Miers' nomination.
Planned Parenthood is not banking on a recusal, Oski said, noting that Supreme Court justices rarely take that course of action.
Even if Miers gets bogged down in a lengthy confirmation battle and does not take her seat until after the case is heard, she could still have a say in the outcome. This is because if she wins approval she could review transcripts of the oral arguments and cast a vote on the case. Chief Justice John Roberts could also order a rehearing.
There is also the remote chance that the nomination process becomes so controversial and lengthy that O'Connor decides to finish out the term on the bench, in which case she would have the opportunity to cast a vote, Oski said.
Louise B. Raggio, an 86-year-old attorney in Texas who has known Miers since her student days at Southern Methodist University, said Miers opposed Roe v. Wade, the 1973 law legalizing abortion, during her 1989 campaign for Dallas City Council.
"She's sort of a born-again Christian," Raggio told Women's eNews. "She opposes it because of her religious beliefs." News organizations reported this week that Miers, as president of the State Bar of Texas, in 1993 tried to get the American Bar Association to replace its newly adopted position backing abortion rights with a position of neutrality. But groups on both sides of the issue hesitate to place great weight on that lone incident because it prompts questions such as one asked by Ellen C. Kearns, a Boston lawyer and the immediate past president of the National Conference of Women's Bar Associations.
"Did she do that because she's fundamentally opposed to Roe v. Wade," Kearns asked, "or was it more a matter that she did not want the American Bar Association to speak globally on that issue?"