Jamming with the Supremes Getting a glimpse of Roberts's first abortion test BY DEIRDRE FULTON

There I was, sitting in the Supreme Court last Friday with the future of women’s reproductive rights hanging in the balance, and I couldn’t see a damn thing.

From my pre-assigned press seat, the only things in my line of vision were a large marble pillar, a heavy red-velvet curtain, and a few fellow journalists. Oh, and an eager-to-help, energetic woman who indicated by holding up her fingers which of the nine Supreme Court justices (each assigned a number) was speaking at any given moment. The only black robe I saw came at the end of the session, when I craned my neck to catch the justices filing out of the courtroom. I think it was Scalia’s.

More important, however, is that by day’s end, the abortion-law landscape had come into clearer view: it’s likely to remain intact for now. There was a fair amount of speculation to the contrary in the weeks leading up to oral arguments in the first two abortion-related cases heard by the Supreme Court in five years, and the first ever to be presided over by new chief justice John Roberts.

Everyone who turned out that chilly morning — pro- and anti-choice activists, and a gaggle of journalists — thought they might witness a landmark debate that would further the erosion of abortion protections. We knew that the first case, Joseph Schiedler v. the National Organization for Women, which concerned the use of federal-racketeering (RICO) laws against groups like Operation Rescue, would involve a dull dissection of legal technicalities — and it did. But the second case of the morning, Ayotte v. Planned Parenthood of Northern New England, was billed as a showstopper.

At issue was the constitutionality of an anti-choice New Hampshire law that requires minors to obtain consent from one parent (or approval from a judge) before getting an abortion, unless her life (but not any medical complications up to death) is in danger. As it turns out, Ayotte is likely to be decided so narrowly that it will have little effect on women’s rights generally. In fact, the case might even have to be re-heard, if Justice Sandra Day O’Connor retires and Bush nominee Samuel Alito is seated before the court rules. And Roberts, for his part, said next to nothing.

However interesting the political ephemera surrounding Ayotte, "all indications are that it’s going to be a routine case," says Georgetown University law professor Mark Tushnet of the decision that will probably come down toward the end of this judicial session.

Even Clarke Forsythe, a legal strategist for Americans United for Life, who was named in the Wall Street Journal that morning as an architect of the New Hampshire law, says: "I can’t believe there will be any discussion about Roe v. Wade or the larger implications on abortion. This is narrow decision."

So I went all the way down to Washington, DC, for nothing?

Well, no.

The release of a 1985 memo — the very same morning as the Ayotte hearing, no less — in which Supreme Court nominee Alito outlined a legal strategy for chipping away at the protections afforded by Roe v. Wade (1973), served as a reminder that no matter the outcome in this specific case, reproductive rights are still up for grabs. The Ayotte case clearly fits into Alito’s strategy, which advocates testing the boundaries of abortion law at the state level, in lieu of a "frontal assault" on Roe. The theory holds that, eventually, all that will be left is a skeleton of Roe, with the states in full regulatory control.

So I accepted my obstructed-view seat this time around — appreciating the hush of the spectators, and the grand architecture of the 44-foot-high ceilings and carved oaken doors — and tried to see where this is going.

THE SHOW OUTSIDE

Those of us who expected fireworks from the Supreme Court hearing were not without good reasons, nor were we alone. Hundreds gathered outside the marble courthouse, while the justices inside pondered the 2003 New Hampshire notification statute.

Pro-choicers insist that past Supreme Court decisions, such as 2000’s Stenberg v. Carhart, mandate that abortion limitations include a health exception. Without one, they claim the law imposes an "undue burden" on the woman, which goes against the court’s compromise in 1992’s Planned Parenthood of Southern Pennsylvania v. Casey. In that case, which dealt with spousal notification, the court ruled that states have a right to pass abortion restrictions (like mandated waiting periods), as long as they do not place an undue burden on a woman’s right to terminate her pregnancy (under this standard, the court struck down a law that forced women to tell their spouses before an abortion).

Anti-choice activists paint the New Hampshire statute in a much different light. It’s about parents’ rights, they say. And any broader health exception (beyond death) "guts the parental-notice statute," says Forsythe, because, as defined in Roe, a health exception includes everything from medical emergencies to emotional distress.

On the morning of the Ayotte hearing, activists from both camps staked out territory on the sidewalk in front of the courthouse, maintaining a safe distance from the steps onto which a chunk of the building itself had crumbled just one day earlier. (One reporter, weary from his fight through the crowds, described the scene among the activists as a tailgate party, missing only the barbecue.)

Indeed, it was a raucous bunch, considering the venue. A line of ticket-holders waited for their reserved seats in the courtroom. Those without reserved seats waited in a line that snaked around the corner for a five-minute chance to see the action from a separate area dedicated to that spectatorial purpose. Young women held signs reading, MY CONSCIENCE TELLS ME TO BE PRO-CHOICE; pro-lifers with red tape plastered over their mouths (to symbolize voiceless fetuses) prayed ardently.

Passersby slowed down to hear strains of "I Have Decided," as performed by 24-year-old David Bradshaw, who could pass for a rocker out of Seattle, circa 1992, were he not singing about our Mighty King Jesus Christ.

"We believe that these court cases are significant," Bradshaw said after his set, speaking for himself and his backup-singer/wife, 24-year-old Ashley Bradshaw, who gestured significantly to her pregnant stomach as soon as we met. "And we believe that our prayers and our worship can change things. We believe that God wants to end abortion."

They want to believe that Chief Justice Roberts does too.

"It is an outrage that the law would step between a parent and a child — and, most especially, the federal courts that have been no friend to families in America," boomed National Clergy Council president Rob Schenck, holding forth before a smallish crowd a few moments before 9 am. But Schenck remained optimistic, and cited a recent meeting with Roberts as grounds for his sunny outlook. Schenck described the conservative Bush appointee as "a man who reveres the Constitution ... a deeply religious man, and a strong family man," who would "guide the court in a confrontation with the truth."

Based on what I saw in the courtroom, however, pro-lifers like Schenck may have to wait a while for such a confrontation.