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When a high-stakes Supreme Court argument looms, litigants often turn to the heavy-hitting veterans of high court advocacy. Not so for the abortion-rights groups who will be fighting the federal Partial Birth Abortion Ban Act of 2003 before the Court Nov. 8. When the pair of cases on the issue is called, staff attorneys Eve Gartner of Planned Parenthood and Priscilla Smith of the Center for Reproductive Rights will rise to the occasion. It’s Gartner’s first high court argument and Smith’s second, but their bosses are confident about sending them into the fray. “I didn’t think about it for more than five seconds,” says Planned Parenthood’s Roger Evans, who adds that Gartner is the first staff lawyer to argue before the high court for the organization, which has been party to many of the major abortion cases in history. “She knows the issues better than anyone walking,” says Evans, noting that Gartner has handled the case from the beginning. Same story from Nancy Northup, president of the Center for Reproductive Rights, who says Smith was the only lawyer considered. Smith represented Nebraska physician LeRoy Carhart, who sued the state for prohibiting him from performing certain types of abortions, all the way through district court and the U.S. Court of Appeals for the 8th Circuit. “The facts really matter in this case,” says Northup. Smith won her first high court case in 2001: Ferguson v. City of Charleston strengthened privacy rights for pregnant women. Smith has “a cool head and a warm heart,” says Northup. Smith is a Yale Law School grad; Gartner’s from Columbia. They sat in on oral arguments recently, along with Kathryn Kolbert, who argued and won Planned Parenthood v. Casey in 1992. Cambridge University professor David Garrow, a leading chronicler of the Court’s abortion jurisprudence, thinks going in house was the right move. “Lawyers who’ve dealt with these issues for years have a mastery of abortion-specific issues and facts that no big-foot Supreme Court specialist could hope to equal.” Defending the law for the Bush administration in both cases will be a veteran: Solicitor General Paul Clement, who has argued 34 cases before the Court. He’s had extra time to prepare; he did not argue any cases in October. One sign of the high interest in the case: The Court has authorized same-day release of argument audiotapes to the media.
Tony Mauro can be contacted at [email protected].

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