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  • An interesting term that keeps getting better
    Court Report with Charles Bierbauer - (April 20)

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    COURT REPORT with Charles Bierbauer

    Supreme Court tackles a host of socially divisive issues

    Abortion cases raise different issues; split opinions possible

    May 8, 2000
    Web posted at: 1:29 p.m. EST (1729 GMT)

    Washington (CNN)--The Supreme Court, in the weeks ahead, could ban an abortion procedure in Nebraska and silence abortion protestors in Colorado. Two of the major cases awaiting the court's rulings before the end of its current term involve abortion.

    On the other hand, the justices could ban the ban Nebraska's legislature sought to place on what is described by its opponents as "partial birth abortion." And they could burst the "bubble" the Colorado legislature created around abortion clinics to give clients unimpeded access.

    The Nebraska case--Stenberg v. Carhart--involves a challenge to what the Supreme Court has long recognized as a woman's right to choose abortion without any "undue burden" being imposed by a state. The Colorado case--Hill v. Colorado --involves a protestor's First Amendment right of free speech and a patient's right of privacy.

    The legal and constitutional issues in the two cases are quite different. The cases are, of course, related because of the emotional and political intensity of the abortion issue. They also bear some resemblance because in both cases justices during the arguments in court expressed concern about the breadth of the state statutes that are in question. In Nebraska's case, the ban could extend beyond the purportedly targetted procedure. In Colorado's case, the "bubble" in which protest is prohibited could envelop much more than anti-abortion protest.

    In the end, abortion opponents and abortion rights activists could well come out of this court term with a split in the opinions of the nine closely split justices.

    Major opinions on such divisive social issues lie just ahead. The court finished its scheduled arguments for the term in late April. It traditionally clears its docket by the end of June. The justices scatter for the summer and reconvene on the first Monday in October. The justices have about three dozen cases left to decide over the next eight weeks. Among them:

    Pray, then play? Preach, then teach?

    But before they go, the justices could let students pray before public high school football games in Texas and let teachers use taxpayer-purchased computers to teach Bible stories at parochial schools in Louisiana. Or they could not.

    Each case raises the constitutional separation of church and state. The argument against the football prayers--Santa Fe Independent School District v. Doe--is that they may be student-led, but they are at school-sponsored events. The argument against the parochial schools--Mitchell v. Helms--is that while federal funds may be used for schools with religious affiliations to purchase certain non-sectarian materials such as books, computers, VCRs and television sets could readily be diverted to religious programming.

    Who--and what--the kids may see

    The justices must also decide how much say grandparents may have in determining when they may see their grandkids in Washington State. They must decide what technological limitations may be required so parents can keep their kids from seeing what's on the Playboy Channel. The cases have nothing in common except the concern for the welfare of children.

    The Washington case--Troxell v. Granville--is an unfortunate family feud writ large. In the wake of the death of one parent, the surviving mother and the father's parents cannot agree on visitation rights. State law--now struck--complicated matters by allowing nearly anyone to petition for visitation.

    The Playboy case, stripped bare, is as much about money as it is free speech. Cable operators airing sexually explicit material may either limit the hours when they show all or scramble their signal to show less. Fully scrambling a signal is expensive. Limited hours reduce revenues. But the case--U.S. v. Playboy Entertainment Group--turns on whether such regulation of technology infringes on First Amendment rights. Three years ago when the question was smut on the internet, the justices declined to stop it.

    Still more rights...

    • Freedom of association--Boy Scouts of America v. Dale. In the last case the justices heard this term, the Boy Scouts of America argued for the right to exclude a gay troop leader. Did the scouts violate his right when they threw him out? Or did the New Jersey Supreme Court violate the scouts' when it ruled that was discrimination?

    • The Violence Against Women Act--Brzonkala v. Morrison. No one's for violence against women, of course, but the case will determine whether a former Virginia Tech co-ed may sue in federal court the football player she says raped her or whether the Violence Against Women Act unconstitutionally tramples on state sovereignty.

    • Trial by jury--Apprendi v. New Jersey; Castillo v. U.S. Under New Jersey law, may a judge impose an additional sentence for acts deemed a "hate crime"? Or must the jury find the hate motive was part of the crime? Similarly, should enhanced sentences for possession of a machine gun during a crime of violence during the Waco siege be imposed on Branch Davidians by judge or jury?

    • Miranda rights--Dickerson v. U.S. "You have the right to remain silent," real life and fictional police have learned to say. But if a cop forgets or a suspect talks to police "voluntarily" before being advised of those rights, may the confession be admitted in court?

    The justices' next opinions are expected on May 15.

    An interesting term that keeps getting better
    April 20, 2000


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