Lawyer revisits abortion argument before high court

NEW YORK - Wednesday morning, Priscilla Smith will dress in all-black, walk into the US Supreme Court in Washington, D.C., and try to persuade the nine justices, also clad in black, that Congress has no business reopening a legal door that the high court already closed.

Smith will have 30 minutes to make her case.

That could prove tough under any circumstances. Yet on it hinges what many see as the future of legalized abortion in America as the court prepares to hear its first pair of abortion-rights cases since Samuel Alito replaced Sandra Day O'Connor on the bench in January. O'Connor, now retired, cast the deciding vote six years ago when a similar challenge to restrictions on abortion, also argued by Smith, was upheld by a 5-to-4 margin.

The case being heard Wednesday, Gonzales v. Carhart, is a constitutional test of the Partial-Birth Abortion Ban Act of 2003, passed by Congress in response to the 2000 Supreme Court decision. The petitioner is US Attorney General Alberto Gonzales; respondent Dr. LeRoy Carhart is a Nebraska physician and abortion provider. (Gonzales v. Planned Parenthood, a separate challenge to the 2003 act, will also be argued.)

Several key questions loom, one being whether any limits placed on access to abortion, federal or state, must take into account health risks to the woman. Six years ago, the court held that a Nebraska ban on so-called "partial-birth abortions" failed to include such protections - and could disallow procedures commonly used in second-trimester abortions.

The term "partial-birth abortion" is itself controversial. Abortion-rights activists call it misleading and inflammatory, while US Solicitor General Paul Clement, who will argue the government's side, has likened the procedure to infanticide.

Uppermost in Smith's mind will be a more fundamental issue than women's health or fetal viability: namely, whether this court is prepared to break with precedent as it tilts rightward - and toward a possible rehearing of Roe v. Wade, the 1973 decision that found the US Constitution protects a woman's right to abortion.

"Up until now, I've felt confident because I have a Supreme Court precedent saying I should win," Smith says during an interview at the Center for Reproductive Rights in lower Manhattan, where she serves as director of the center's domestic legal program. "But the court's composition has changed. So, we'll see."

She concedes the odds are stacked against her. "Still, I have faith in the correctness of our position. And in the open-mindedness of the court, which is not writing on a clean slate, after all."

Is she nervous, with so much at stake?

"Some say you can never win a case on oral argument, you can only lose one," Smith ventures after a long pause. "The Supreme Court is a little different. The room itself is daunting, especially your first time there.

The justices sit way up high. There are all those people in the gallery watching - including your dad, who doesn't want those 'mean justices' hurting you."

Her first time before the high court, she was admittedly on edge. "I had doubts like, should they be letting me do this?" she recalls. "It wasn't my best day. But at some point if you don't think, 'Oh my God, I'm going to lose this case,' then you're really not prepared."

If anyone is able to sway this court with the courage of her convictions, says CRR president Nancy Northup, it is Smith, who once argued a landmark case involving drug-abusing pregnant women while she, Smith, was visibly pregnant. Colleagues call her smart, prepared, and unflappable.

She'll need to be all of those Wednesday. "Cilla has been on the front lines of this battle for more than a decade," says Northup. "She really understands not just the legal issues but the real-life issues, too."

CRR legislative counsel Katherine Grainger concurs. As political pressure builds around antiabortion measures, Grainger says, most conspicuously in states like South Dakota, which votes on a tough antiabortion statute Tuesday, legal pressures mount, too. "If anybody can handle it, Cilla can," says Grainger.

Win or lose, Smith, 43, will draw upon a strong grounding in social justice issues.

Raised in Brookline, where her father was Episcopal chaplain at Boston University, Smith grew up in a household filled with college students and earnest talk about civil rights and the Vietnam War. In 1978, her father left BU to become chaplain at the elite Groton School. It was "a huge culture shock for me," says Smith, who spent her last two high school years at Groton. "I don't think there was even one Republican at Brookline High."

Smith got to Yale just as the feminist and gay-rights movements were gaining traction. She ran the campus women's center in New Haven, interned in local prisons, and engaged in economic-justice issues even more deeply.

Moving to Boston after graduation, she worked for the Massachusetts Department of Welfare as a federal relations analyst.

"I was not one of these people - and I'm embarrassed to admit this now - who went to law school to do this work," says Smith, seated at an office table overflowing with legal briefs. "But I was hoping to use the law for social change, somehow."

With a Yale law degree in hand, Smith moved to San Francisco in 1991 and got a job with a large corporate law firm. It was not an entirely happy fit, she admits today. The pro bono work was satisfying, yet much of what the firm did was "sometimes distasteful, and even a little morally bankrupt," as Smith puts it.

By this time, Smith, who came out as a lesbian in the mid-'80s, had entered into a relationship with a woman who would become her life partner.

The couple now have two young children. She challenges any notion that her lifestyle fails the "family values" test. "I have two kids, a Volvo, and a Brooklyn brownstone," she says. "I really do lead a fairly conventional life."

In 1993, a CRR staff opening brought her to New York. Since then, the bulk of her work has been researching case law, writing appellate briefs, and, in many instances, serving as lead counsel in court cases involving a panoply of reproductive rights issues, from abortion to contraception to sex education. In 2000, she was co-counsel in Stenberg v. Carhart, the Supreme Court case whose precedent she hopes to rely upon Wednesday.

At least two high-profile cases argued by Smith have featured defendants evoking little sympathy from the public at large. In Ferguson v.

City of Charleston, 10 pregnant women were arrested after testing positive for cocaine in the public hospital where they sought prenatal care.

Smith challenged their arrests on grounds that involuntary drug-testing violated their Fourth Amendment rights against illegal search and seizure.

The Supreme Court ultimately concurred. In another controversial case, argued by Smith before the Florida Supreme Court, a pregnant woman faced murder charges after she shot herself in the stomach, killing her unborn child.

Again, Smith's side prevailed. But as she knows all too well from the "partial-birth abortion" debate, public sentiment is not always on her side. Even her mother expressed some discomfort with defending the procedure, Smith says.

Smith's father, now retired, says his own views shifted when a family friend nearly died of a botched illegal abortion in the pre-Roe era. He later joined a clergy-run program counseling women on problem pregnancies.

"So-called partial-birth abortion is a terrible decision for women and doctors to make," he says. "But I trust them to make these decisions for themselves, not lawmakers or courts."

Her main task, according to Smith, will be explaining to the justices what the federal ban really means.

Why the all-black ensemble? "Because I don't want them thinking about anything but the case," Smith says. "It's not about me."

Joseph P. Kahn can be reached at jkahnglobe.com.

c.2006 The Boston Globe