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Bush administration asks Supreme Court to hear appeal of partial-birth abortion case

WASHINGTON (BP)–The Bush administration is asking the U.S. Supreme Court to take up the issue of partial-birth abortion, providing an opportunity for pro-lifers to know within a year where the two newest members of the court stand on the contentious issue.

The Justice Department filed the appeal Sept. 23, arguing that lower courts erred when they overturned the 2003 federal ban on partial-birth abortion, which President Bush signed into law. Abortion rights groups quickly prevented the law from taking effect by suing in federal court.

The high court considered a partial-birth abortion case in 2000 (Stenberg v. Carhart), striking down a Nebraska law that had banned the gruesome procedure. In that 5-4 ruling, the court said partial-birth abortion could only be banned if there was an exception for the health of the mother. Pro-lifers say such an exception would leave a gigantic loophole and make any ban worthless. The 2003 law does include an exception for the life of the mother.

In passing the Partial Birth Abortion Ban Act of 2003, Congress released legislative findings declaring that partial-birth abortion is never necessary to save the health of the mother.

“While Congress plainly cannot supersede constitutional rules announced by this court, the medical necessity of partial-birth abortion is merely a ‘factual question’ relevant to determining the applicability of the relevant constitutional rule,” the Justice Department argued in its legal briefs. “… The court of appeals therefore erred by refusing to accord deference to Congress’s findings….”

Moreover, the Justice Department argued, the Supreme Court has in the past deferred to legislative findings in other cases, such as ones related to medical and scientific issues. The Justice Department’s appeal comes following a decision by the Eighth Circuit Court of Appeals striking down the 2003 law. The appeals court’s decision affirmed a lower court’s ruling.

Partial-birth abortion is a grisly procedure in which a doctor delivers an intact baby, feet first, until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. It normally is performed in the second and third trimesters — often on babies who would survive outside the womb.

President Bush’s nominee for chief justice, John Roberts, is expected to be confirmed easily in a Senate vote Sept. 29. Soon thereafter, Bush likely will name his pick to succeed the retiring Sandra Day O’Connor, who supported abortion rights and provided a critical vote for the majority in the 2000 partial-birth abortion case. Pro-lifers must have the votes of both Roberts and O’Connor’s successor to reach the five votes needed to uphold the law.

The Supreme Court already is scheduled to consider the constitutionality of a New Hampshire parental notification law this term.

“This will prove to be a monumental term at the Supreme Court of the United States concerning the life issue,” Jay Sekulow, chief counsel for the American Center for Law and Justice, said in a statement. “… This is indeed a critical time at the Supreme Court. I am hoping the Supreme Court will take the partial-birth abortion case because it is clear that the government does have a vital and compelling interest in preventing the spread of the practice of abortion into infanticide. It is time for the Supreme Court to put an end to this abhorrent practice once and for all.”

If the court takes up the partial-birth case and upholds the law, it would be the most significant legal victory for the pro-life movement in the 32 years since the Roe v. Wade decision legalizing abortion was handed down.

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