What's at Stake in The Fight

By Daniel Eisenberg

ABORTION

Over the past decade, parental-notification rules, mandatory waiting periods and other state restrictions have steadily chipped away at a woman's right to abortion. With Supreme Court Justice Sandra Day O'Connor's retirement, it would probably take only the departure of one of the court's four remaining moderate-to-liberal members--most likely John Paul Stevens, 85, or Ruth Bader Ginsburg, 72--to overturn Roe v. Wade, which established abortion rights nationwide, or the court's more recent precedent, 1992's Planned Parenthood v. Casey. The more pressing matter of late-term-abortion bans is sure to come before the court soon. In 2000 the court ruled 5-4 that a Nebraska ban was unconstitutional because it didn't include an exception for women whose health was endangered by pregnancy; O'Connor cast the decisive vote. On the same grounds, the federal ban has been ruled unconstitutional by three district courts, and it could find its way to the Supreme Court in the coming years. Next term the court is scheduled to hear a case involving a New Hampshire parental-notification law that was struck down because its exception for health problems was limited to cases of life-threatening pregnancies.

CHURCH AND STATE

The mixed message sent by two recent 5-4 decisions on the public display of the Ten Commandments effectively ensures that the court will continue to grapple with the separation of church and state in the years ahead. By taking context and history into account, the court ruled that one display, 44 years old and situated outside the Texas state capitol among dozens of other sculptures and markers, passed constitutional muster, while the others, set up much more recently in two Kentucky courthouses, did not. Other issues that the court may soon address include government aid to religious schools, faith-based initiatives and attempts by religious conservatives to introduce creationist theories to public-school curriculums. A case in the lower courts concerns whether the state of Iowa can fund a religious-fellowship program in Iowa prisons. One case next term revolves around whether the federal government can prohibit a small Brazilian-American religious sect from importing a hallucinogenic tea--officially classified as a controlled substance--that it uses in rituals. The current court has rejected school-prayer schemes that are not purely voluntary, and it has put restrictions on school vouchers. But if another moderate leaves the court, that could change.

GAY RIGHTS

Ever since the court in 2003 struck down a Texas statute that criminalized same-sex sodomy, social conservatives have echoed Justice Antonin Scalia's lament that the court "has largely signed on to the so-called homosexual agenda." But in the same decision, the court stressed that a right to same-sex privacy did not necessarily translate to a right to same-sex marriage. For now, the gay-marriage debate is being played out in the states, but before long the 1996 federal Defense of Marriage Act, which lets states refuse to recognize other states' same-sex marriages, could make its way to the Supreme Court. If by then another moderate-to-liberal Justice has been replaced by a conservative, the court could conceivably overturn the sodomy case and the 1996 decision that outlawed a Colorado constitutional provision banning anti-discrimination statutes based on sexual orientation. And although it refused to take up the issue earlier this year, the court may also one day consider state laws preventing gays and lesbians from adopting children. In the meantime, next term the court plans to rule on whether Congress can withhold money from universities that make it hard for the military to recruit on campus because they oppose its "Don't ask, don't tell" policy toward homosexuals.

CRIME AND PUNISHMENT

The death penalty isn't in any danger of being outlawed outright, but if the court's recent record is any indication, executions may well continue to be more severely restricted, at least until another member of the moderate-to-liberal wing departs the bench. In just the past three years, the court has ruled out capital punishment for the mentally retarded and juveniles while overturning a few death sentences because of incompetent legal counsel or racial bias in jury selection. Later this year, the court is scheduled to hear a much anticipated case concerning whether a Tennessee man on death row for the past 19 years can win a new trial because of fresh DNA evidence that may exonerate him. "These nagging questions of innocence have been driving the death cases in the court," says Richard Dieter of the Death Penalty Information Center. "A few years ago, they would have gone the other way." Though no test cases are scheduled, in the next few years the court could also find itself revisiting the issue of federal mandatory criminal-sentencing guidelines. In January the court ruled that the guidelines, nearly two decades old, were unconstitutional and need only be considered advisory by judges, a decision that has drawn harsh criticism from Republicans in Congress and the Bush Administration.

AFFIRMATIVE ACTION

The battlefield may have seemed quiet of late, but the war over affirmative action isn't necessarily over. O'Connor cast the decisive vote in the landmark 2003 case Grutter v. Bollinger, which upheld the University of Michigan Law School's admissions policy of taking race into account on a case-by-case basis. In a separate ruling concerning Michigan undergraduate admissions, the court said rigid race quotas or formulas were unconstitutional. Any number of groups could potentially spark a new challenge. Anti-affirmative-action activist Ward Connerly is spearheading a 2006 ballot initiative in Michigan that would amend the state constitution to ban the use of all racial preferences in university admissions or state hiring. The Center for Equal Opportunity, a public-policy research group, has threatened to file federal civil rights complaints against some 100 colleges if they don't open any racially or ethnically exclusive programs, such as certain scholarships, to all applicants.

STATES' RIGHTS

With the court's recent decision that federal drug laws override Oregon's statute allowing marijuana use for medical purposes, the states'-rights revolution that many conservatives have trumpeted over the past decade has lost some momentum. But that doesn't mean the movement that helped overturn the Gun Free School Zones Act, part of the Violence Against Women Act and portions of the Americans with Disabilities Act is finished. Other cases that the court will deal with in the near future concern federal authority over homemade machine guns and possession of child pornography.

RIGHT TO DIE

Although the court refused to intervene in the Terri Schiavo case this spring, that was far from the last word it will have on the right to die. Next term the court is scheduled to hear the Bush Administration's challenge to Oregon's law that allows doctors to write prescriptions for a lethal dose of medication for terminally ill patients. The Federal Government says Oregon's doctor-assisted suicide is a violation of the Controlled Substances Act, a claim rejected by the lower courts. The Justices ruled in 1997 that state laws banning assisted suicide are constitutional. Still, given how much ambivalence they expressed in that case, this one is anything but open and shut. --Reported by Viveca Novak, Amanda Ripley and Eric Roston/Washington

With reporting by Reported by Viveca Novak, Amanda Ripley, Eric Roston/Washington