Partial-Birth Abortion Ban Headed to Supreme Court After Bush Appeal

National   |   Steven Ertelt   |   Sep 26, 2005   |   9:00AM   |   WASHINGTON, DC

Partial-Birth Abortion Ban Headed to Supreme Court After Bush Appeal Email this article
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by Steven Ertelt Editor
September 26, 2005

Washington, DC ( — The Bush administration on Monday appealed a federal appeals court’s decision declaring the national ban on partial-birth abortions unconstitutional. The appellate court said the ban on partial-birth abortions should be struck down because it lacks a "health exception."

After President Bush signed the ban in 2003, abortion advocates took it to court in three separate cases. District court judges ruled the ban unconstitutional in all three and 8th U.S. Circuit Court of Appeals cited a prior Supreme Court decision saying the ban needs a health exception.

The Bush administration brief argues that Congress’ findings should be respected, namely that it heard from numerous doctors that said the three-day long abortion procedure is never necessary to protect a woman’s health.

"Congress received oral and written testimony from experts who stated that partial-birth abortion was not necessary to preserve the health of the mother in any circumstances," the brief said.

Solicitor General Paul Clement said the nation’s top court should take the case.

"This case involves the constitutionality of a significant act of Congress that has been invalidated and permanently enjoined by the lower courts," Clement said in the brief.

If the high court grant’s the president’s request for a review of the decision, it would be the second time it has looked at partial-birth abortions.

In the 2000 case of Stenberg vs. Carhart, the Supreme Court overturned that Nebraska’s ban on the partial-birth abortion procedure over the health exception.

However, the makeup of the court, by the time the case comes up for hearings next spring, could be changed enough to alter the outcome.

Both pro-life Chief Justice William Rehnquist and pro-abortion Justice Sandra Day O’Connor will be gone. John Roberts, who says he respects the rule of law, will replace Rehnquist and Bush is looking at several possible pro-life picks to replace O’Connor, who was the deciding vote in the Carhart case.

That could swing the 5-4 decision overturning the ban to a 5-4 decision upholding it.

According to the Justice Department brief, the American Medical Association convened a panel to study the issue of partial-birth abortions.

The expert panel “could not find ‘any’ identified circumstance” where partial-birth abortion “was ‘the only appropriate alternative’” to preserve the health of the mother."

The Supreme Court has already scheduled arguments on another abortion case for November — a review of an appeals court decision striking down a New Hampshire law requiring abortion businesses to notify parents of a teenager when she is considering an abortion. That case also revolves around the so-called health exception.

The partial-birth abortion procedure was developed by Ohio abortion practitioner Martin Haskell, who admits that he performs it on mostly healthy women and healthy babies.

The case is Gonzales v. Carhart, 05-380.