Supreme Court Makes No Decision on Partial-Birth Abortion Ban Case 
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by Steven Ertelt
LifeNews.com Editor
January 9, 2006
Washington, DC (LifeNews.com) — The Supreme Court made no decision on whether it would accept an appeal by the Bush administration of a federal appeals court decision striking down a national ban on partial-birth abortions. The non-decision comes at a time when members of the Senate are debating the nomination of Samuel Alito, who could decide the outcome of the case.
Attorneys for President Bush are asking the high court to reinstate the law and reverse a decision saying it is unconstitutional because it lacks a health exception, even though the three-day long abortion procedure is never necessary to protect a woman’s health — and may violate it.
On Friday, the Supreme Court granted six new cases for argument in April. While it did not add the partial-birth abortion case to the list, it could announce its addition to the list at any time.
Congress approved a national partial-birth abortion ban in 2003 and President Bush signed it into law. Immediately thereafter, pro-abortion groups and abortion practitioners filed three separate lawsuits seeking to overturn the ban.
The abortion advocates argued the ban violates the high court’s 2000 Stenberg v. Carhart decision saying a Nebraska ban on partial-birth abortions was unconstitutional because it lacked a health exception.
In its bill, Congress included a lengthy section summarizing the research and information doctors had presented Congress showing the three-day long abortion procedure is never necessary to protect the health of a mother in an emergency situation.
Three federal district courts all agreed the ban violated the Stenberg decision and overturned it on that basis. One of the cases made it to the Eighth Circuit Court of Appeals, which also overturned it. The Bush administration has appealed that decision.
"In 2000, five justices of the Supreme Court in effect ruled that Roe v. Wade guarantees the right to perform partial-birth abortions at will," explained NRLC Legislative Director Douglas Johnson, in a statement provided to LifeNews.com.
"Unless the Court accepts this new case and abandons the extreme position it took in 2000, partly born premature infants will continue to die by having their skulls punctured with seven-inch scissors," Johnson added.
How the court handles the case will depend largely on whether the Senate votes later this month to confirm Supreme Court nominee Samuel Alito. Alito would replace outgoing pro-abortion Justice Sandra Day O’Connor, who was the deciding vote and wrote the majority opinion in the 5-4 Stenberg decision.
Alito has previously ruled in a partial-birth abortion case, voting to strike a New Jersey law banning the gruesome procedure. However, the decision in the case came after the Stenberg decision and Alito is said to have voted the way he did because of the requirement to uphold the high court’s precedent.
In his opinion, Alito chastised the appeals court for sitting on the case and not issuing a decision until after the Supreme Court ruled. Legal observers say Alito’s reaction seems to indicate he would have voted to uphold the law had the high court not ruled first and they say Alito would be likely to uphold the federal ban.
New Chief Justice John Roberts is expected to vote to uphold the ban as did former chief William Rehnquist.
The Second and Ninth Circuits are reviewing appeals of the district court decisions in the other two cases.
In addition, the state of Virginia has filed an appeal with a ruling by the Fourth Circuit striking down its partial-birth abortion ban. Virginia’s law took a different approach than the national or Nebraska ban by declaring a partial-birth abortion an infanticide and seeking to ban it under such statutes.
