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Supreme Court agrees to hear partial-birth abortion case

WASHINGTON (BP)–The U.S. Supreme Court announced Feb. 21 it will decide if a federal ban on partial-birth abortion is constitutional, providing pro-lifers with hope the justices will uphold the first restriction on a specific procedure since abortion was legalized 33 years ago.

The high court will review a decision from the Eighth Circuit Court of Appeals striking down the Partial-birth Abortion Ban Act. The Eighth Circuit was one of three appellate courts in recent months to affirm lower court rulings invalidating the 2003 law.

The justices will not hear oral arguments in the case, Gonzales v. Carhart, until their next term, which will begin in October.

The law in question bars a grisly procedure used by some doctors in which 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, then inserts a catheter into the opening and suctions out the brain. The technique, which provides for easier removal of the baby’s head, normally occurs in the fifth or sixth month of pregnancy.

Recent changes on the Supreme Court have bolstered the hopes of the federal law’s supporters that the justices may permit the ban after striking down a state prohibition on the procedure in 2000. In that 5-4 ruling, Associate Justice Sandra Day O’Connor voted with the majority. She has retired, however, and been replaced by Samuel Alito, who was confirmed by the Senate in January. In addition to Alito, John Roberts also has joined the court since that opinion, replacing the late William Rehnquist as chief justice in September.

Rehnquist dissented in the 2000 ruling that invalidated Nebraska’s partial-birth abortion ban, and he was joined by three justices who remain on the court: Antonin Scalia, Anthony Kennedy and Clarence Thomas. The addition of Roberts and Alito, 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 order for a lower-court decision to be reviewed, four justices must agree to accept the case.

The divergent reactions of pro-life and abortion-rights advocates indicated both the hopes and fears about the high court’s eventual opinion.

“I am delighted the Roberts court has decided to take this case,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. He told Baptist Press he hopes a ruling in favor of the ban “will be the first clear signal that the Roberts court will be much more protective of human life than its Rehnquist predecessor.”

Jay Sekulow, chief counsel of the American Center for Law and Justice, described the court’s action as “incredibly important.” He said, “With the new makeup of the high court, we are encouraged that the justices will determine that the government does have a vital and compelling interest in preventing the spread of the practice of abortion into infanticide.”

Denise Burke, vice president of Chicago-based Americans United for Life, said she was “heartened by the court’s willingness to revisit this issue. We are hopeful that the court will reverse course and repudiate its 2000 decision … [that] sanctioned this type of infanticide just as it has previously renounced decisions approving racial segregation and the internment of Japanese-Americans in World War II without due process of law.”

On the abortion-rights side, Nancy Keenan, president of NARAL Pro-choice America, said the justices’ decision to grant the appeal “means the core principle of protecting women’s health as guaranteed by Roe v. Wade is in clear and present danger.”

Roe v. Wade is the 1973 Supreme Court opinion that struck down state abortion bans and legalized the practice throughout the country.

Cecile Richards, new president of Planned Parenthood Federation of America, called the action “a dangerous act of hostility aimed squarely at women’s health and safety.”

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 an exception to protect the health of the mother. 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. While the Ninth Circuit decision was unanimous, the Second Circuit ruling had a dissenter.

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.

In its 2000 decision in Stenberg v. Carhart, the Supreme Court ruled Nebraska’s prohibition on partial-birth abortion 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 on the Nebraska law, which was patterned after the federal measure, by drafting a new 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 Bush signed the bill in November 2003, abortion rights organizations quickly challenged the law in three courts and blocked its enforcement. Federal judges in New York City, San Francisco and Lincoln, Neb., struck down the law.

Judicial requirements of an exception for a mother’s health have frustrated attempts to enact a meaningful prohibition on partial-birth abortion. Until now, the dilemma 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 it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.

“We hope the court will use this opportunity to finally re-examine its broad health exception requirement that demands abortion must be allowed at any time of pregnancy for any reason, including ‘emotional health’ and ‘familial health,’” Americans United for Life senior counsel Clarke Forsythe said after the justices announced they would grant the appeal.

The Southern Baptist Convention approved resolutions condemning the partial-birth procedure in both 1996 and 2002.

The Ethics & Religious Liberty Commission joined six other organizations in signing on to a 2004 friend-of-the-court brief by the Christian Legal Society asking the Eighth Circuit to overturn a federal judge’s ruling against the ban.