Supreme Court Agrees to Hear Partial-Birth Abortion Ban Case

National   |   Steven Ertelt   |   Feb 21, 2006   |   9:00AM   |   WASHINGTON, DC

Supreme Court Agrees to Hear Partial-Birth Abortion Ban Case Email this article
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by Steven Ertelt Editor
February 21, 2006

Washington, DC ( — The Supreme Court has decided to hear the Bush administration’s appeal of a decision from a federal appeals court overturning the national ban on partial-birth abortions approved by Congress and signed into law by President Bush.

The case is one of just a handful of cases they will hear out of 800 appeals that have been filed with the high court.

Abortion advocates filed three lawsuits against the ban and had three appeals courts issue similar decisions against it. Specifically, the court will hear an appeal of the July 2005 ruling by the 8th Circuit Court of Appeals.

The Supreme Court will hold arguments and decide the case during its next term, which begins in October. A decision in the case would be likely around December or January 2007.

Three appeals courts have ruled the ban unconstitutional because it lacks a health exception — even though the three-day long abortion procedure is never necessary to protect a woman’s life or health.

The appeals courts based their decision on a 2000 Supreme Court ruling regarding a Nebraska ban on partial-birth abortions, which it invalidated. Former Justice Sandra Day O’Connor wrote the opinion for the divided 5-4 court saying the ban would allowable if it had the disputed exception.

"Unless the Supreme Court now reverses the extreme position that five justices took in 2000, partly born premature infants will continue to die by having their skulls punctured by seven-inch scissors," National Right to Life legislative director Douglas Johnson said.

Supreme Court observers and pro-life groups expect O’Connor’s replacement, Justice Samuel Alito, to be much more willing to uphold the ban.

During his tenure on the 3rd Circuit Court of Appeals, Alito had the opportunity to review a New Jersey partial-birth abortion ban. The court had the opportunity to rule on the law in advance of the Supreme Court’s opinion but chose to wait months before handing down its decision.

Bound by the high court’s precedent, Alito voted to overturn the law, but he chided his colleagues for waiting and his opinion suggests to many that he would have voted to affirm the legislation had the appeals court ruled first.

Pro-life advocates also take comfort in comments Alito made during his Senate confirmation hearings.

Responding to the 2000 Supreme Court decision, Congress included a lengthy findings section, detailing the hearings it held on partial-birth abortions, in hopes it would persuade the nation’s top court that a health exception is unnecessary.

The findings section cites an American Medical Association convened 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."

It also indicated partial-birth abortions may pose health risks for women. Such risks include cervical incompetence, trauma to the uterus, and lacerations or hemorrhaging.

Pro-life Ohio Sen. Mike DeWine, a Republican, asked Alito what he thought about findings sections in general.

"In your opinion, what role should a judge play when reviewing congressional fact-finding," DeWine asked. "[H]ow can you assure us — that you will show appropriate deference to the role of Congress?"

Alito indicated "the judiciary should have great respect for findings of fact that are made by Congress."

He discussed an unrelated case and said his decision in the case would have "been very different for me if Congress had made findings."

Alito said he was "fully aware" that legislative bodies like Congress or state legislatures are in a better position to hold hearings and obtain information about complex political issues.

Therefore, "when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect."

The Supreme Court could have accepted a prior decision from an appeals court striking down the law when it announced last month some new cases it would hear. The partial-birth abortion case was not among them.

The high court may be more likely to hear a case now that the other appeals courts have ruled on all three of the lawsuits abortion advocates and practitioners filed to stop the ban from going into effect.

President Bush signed the law in November 2003 but it never went on the books because of the lawsuits.