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ERLC-backed brief asks justices to uphold partial-birth ban

WASHINGTON (BP)–The Southern Baptist Convention’s public policy entity has joined in a brief asking the U.S. Supreme Court to uphold a federal ban on partial-birth abortion.

The Ethics & Religious Liberty Commission and three other religious organizations signed on to the friend-of-the-court brief filed May 19 by the U.S. Conference of Catholic Bishops. The Supreme Court will hear oral arguments in the case, Gonzales v. Carhart, during its next term, which begins in October.

The Partial-birth Abortion Ban Act, which was enacted in 2003 but has been invalidated by federal courts so far, bars a gruesome procedure typically used in the fifth or sixth month of pregnancy. In the method, an intact baby is delivered normally 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 before inserting a catheter into the opening and suctioning out the brain. The technique provides for easier removal of the baby’s head.

The brief says the ban is not governed by previous high court opinions on abortion, because it deals with the killing of a child who is largely outside the mother’s body. It also contends the law is constitutional even if the justices’ previous decisions are applied, because it restricts only a method, not abortion itself. Another argument offered in the brief is that the Supreme Court’s abortion rulings, beginning with the 1973 Roe v. Wade opinion striking down all state bans, need to be re-examined.

“Southern Baptists are overwhelmingly opposed to abortion on demand and even more overwhelmingly opposed to the heinous and barbaric practice known as partial-birth abortion, where a partially born baby is killed,” ERLC President Richard Land said after the brief was filed.

“The Bible tells us life begins at conception and that children are an inheritance from God,” he said. “America has been like the prodigal son, taking the inheritance of our unborn children and wasting it in the riotous living of self-absorption and sacrificing our unborn children to the pagan gods of material well-being, social convention and career advancement. The ugliest part of the horribly ugly abortion issue is the killing of partially born babies.

“I would urge all Southern Baptists and people of goodwill to pray that God would give the Supreme Court justices the wisdom to uphold the banning of this barbaric and heinous practice,” Land said.

The SBC approved resolutions condemning the partial-birth procedure in both 1996 and 2002.

In addition to the ERLC, other organizations signing onto the USCCB brief were the Greek Orthodox Archdiocese of America, International Church of the Foursquare Gospel and Lutheran Church-Missouri Synod.

Three different appeals courts at the federal level have ruled the prohibition is unconstitutional, but pro-life advocates hold out hope the January confirmation of Samuel Alito as an associate justice means the Supreme Court will reverse those decisions. Alito replaced retired Associate Justice Sandra Day O’Connor, who voted with a 5-4 majority that struck down a state ban on partial-birth abortion six years ago.

The addition of Alito and Chief Justice John Roberts, who both have reputations for fidelity to the constitutional text, sets up the possibility this time there will be five votes in favor of a prohibition on the technique. In September, Roberts replaced the late William Rehnquist, who dissented in the 2000 ruling that invalidated Nebraska’s partial-birth abortion ban. Rehnquist was joined on the minority side in that decision by three justices who remain on the court: Antonin Scalia, Anthony Kennedy and Clarence Thomas.

In its Stenberg v. Carhart opinion in 2000, the Supreme Court ruled Nebraska’s prohibition was unconstitutional because it imposed an “undue burden” on a woman’s right to choose abortion, did not include an exception for health reasons and could be used against another method.

Congressional sponsors of a ban responded to the high court’s 2000 decision by drafting a new federal version that sought to address a couple of issues, including the justices’ demand for a health exception. The new federal law declared in its findings the method is neither safe for women nor necessary to preserve their health, based on the testimony of doctors. It included an exception to protect the mother’s life.

After President Bush signed the bill into law in November 2003, abortion rights organizations quickly challenged it in three courts and blocked its enforcement. Federal judges in New York City, San Francisco and Lincoln, Neb., struck down the law.

A three-judge panel of the Eighth Circuit, which is based in St. Louis, ruled unanimously in July of last year the federal ban was unconstitutional because it does not include a health exception. The Department of Justice urged the Supreme Court to review the decision. In January, three-judge panels of the Second and Ninth circuits also weighed in against the law. The Second Circuit is in New York City, and the Ninth Circuit is based in San Francisco.

In the ERLC-endorsed brief, the USCCB says, “Killing a child substantially outside his or her mother’s body is not protected under this Court’s abortion jurisprudence. And this Court should not extend that jurisprudence to include it.”

On whether Congress can decide a health exception is unnecessary, the brief contends, “Failure to defer to the legislative branch here, as in any other medical context, would transform this Court and lower courts into an ongoing medical review board, a role this Court has properly disclaimed.”

In arguing for the justices to re-examine the high court’s abortion opinions, the brief says even scholars who support abortion rights have criticized Roe. Also, “recent medical research and scholarship on abortion continue to undermine many of the factual assumptions underlying Roe,” the brief says.

The judiciary’s requirement that an abortion restriction include an exception for a mother’s health has frustrated attempts to enact a meaningful prohibition on the partial-birth procedure. Until now, the dilemma that ban advocates have been unable to solve is this: If they pass a partial-birth abortion ban without a health exception, the courts strike it down; if they approve a ban with a health exception, it is ineffective because of the judiciary’s definition of “health.”

In its 1973 Doe v. Bolton opinion, which accompanied the Roe decision, the Supreme Court defined maternal health so expansively that it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.

Congress approved the Partial-birth Abortion Ban Act by wide margins in 2003, with the Senate voting 64-34 for the bill and the House of Representatives passing it in a 281-142 vote. Congress had twice adopted partial-birth abortion bans in the 1990s only to have President Clinton veto them. In both 1996 and 1998, the House achieved the two-thirds majorities necessary to override vetoes, but the Senate fell short.