Supreme Court Should Uphold Congress Authority on Partial-Birth Abortion Ban 
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by Jay Sekulow
July 7, 2006
LifeNews.com Note: Jay Sekulow is chief counsel of the American Center for Law and Justice, a pro-life constitutional law firm. The ACLJ is representing members of Congress and more than 320,000 Americans before the Supreme Court in support of the national ban on partial-birth abortion.
As you know, the Supreme Court of the United States is tackling one of the most important cases involving the protection of human life. For the second time in six years, the high court is considering the issue of partial-birth abortion. The case now before the high court – Gonzales v. Carhart – involves the constitutionality of a national ban on partial-birth abortion – a measure that received overwhelming bi-partisan support in Congress – a measure that’s been declared unconstitutional by several appeals courts. The case before the Supreme Court originates out of Nebraska and tackles head-on the constitutionality of the Partial-Birth Abortion Ban Act of 2003.
The American Center for Law and Justice has filed an amicus brief with the high court supporting the federal government’s position that the ban is constitutional. In the brief, we represent nearly 80 members of Congress and more than 320,000 Americans who signed on to the ACLJ Committee to Protect the Ban on Partial-Birth Abortion.
In this article, I want to focus on an important piece of our legal argument – Congress has the authority to end partial-birth abortion.
The decision declaring the national ban unconstitutional was based on the Supreme Court’s 2000 decision in the case of Stenberg v. Carhart in which the high court voted 5-4 to declare a Nebraska state law banning partial-birth abortion unconstitutional. In our brief, we provide a detailed analysis on why the Stenberg decision was legally flawed and should not be applied in this case.
In addition, we spend considerable time arguing that the high court should defer to Congress in this area in light of the extensive consideration Congress gave to the Partial-Birth Abortion Ban Act.
The fact is that the measure approved by Congress and signed into law by President Bush represents a permissible and constitutional course of action. The history of this legislation is especially important. This measure became law only after more than eight years of deliberation and analysis. Four different Congresses conducted six hearings on such legislation and heard from dozens of doctors, nurses, medical associations, professors, members of Congress, and private citizens. After reviewing all of the evidence before it, Congress concluded that the Act promoted salutary goals and that “partial-birth abortion is never necessary to preserve the health of a woman and should, therefore, be banned.” Our brief asserts that the “federal judiciary should defer to these factual determinations” and should uphold the federal ban.
The brief makes a strong argument that Congress acted properly and within its purview to enact the federal ban. “Governments – and all their people – therefore have a tremendously important stake in the unqualified prohibition of partial birth infanticide,” the brief asserts.
In arguing that the decision by the U.S. Court of Appeals for the Eighth Circuit was erroneous and should be reversed, the ACLJ brief concludes that: “Congress’s judgment that the procedure as defined in the PBA Act should be prohibited in order to reflect American society’s horror at infanticide is entitled to considerable respect and deference.”
The truth is that the federal ban is a valid – indeed essential – barrier against infanticide. Webster defines infanticide with one sentence: “the killing of an infant.” And no matter how abortionists attempt to color the language – make the barbaric act seem like a benign medical procedure – our brief calls this horrific act exactly what it is – infanticide. And that is why upholding the constitutionality of the federal ban is so important.
“Absent strong legal barriers and vigorous societal condemnation, partial birth procedures open the way to legal infanticide,” the brief argues.
At least three members of the Supreme Court understand the gruesome nature of partial-birth abortion. Consider these words from Justices Kennedy, Thomas, and Scalia in their dissents following the Stenberg decision in 2000:
Justice Kennedy: “The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life.”
Justice Thomas: “The court inexplicably holds that the states cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide . . .”
Justice Scalia: “The method of killing a human child – one cannot even accurately say an entirely unborn human child – proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”
Six years ago, Justices Kennedy, Thomas, and Scalia were part of the “minority” in the partial-birth abortion case. Of course, things are much different on the high court today. Justice Alito is on the bench – replacing Justice O’Connor who provided the one vote margin for a 5-4 decision declaring the state ban unconstitutional.
Will the “minority” of six years ago will become the “majority” next term with a Supreme Court upholding the constitutionality of the federal ban? That is our hope and our prayer.
