Two Pro-Life Law Firms File Partial-Birth Abortion Briefs at Supreme Court

National   |   Steven Ertelt   |   Aug 7, 2006   |   9:00AM   |   WASHINGTON, DC

Two Pro-Life Law Firms File Partial-Birth Abortion Briefs at Supreme Court

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by Steven Ertelt Editor
August 7, 2006

Washington, DC ( — Two more pro-life law firms, including the Thomas More Society and the Christian Legal Society have filed legal briefs in the second partial-birth abortion case to arrive at the Supreme Court. They urge the high court to reverse its 2000 decision declaring bans on partial-birth abortion unconstitutional.

Thomas More indicated it was hopeful that the Supreme Court would take a new position on partial-birth abortion thanks to new Justice Samuel Alito, who replaces Justice Sandra Day O’Connor.

O’Connor wrote the 5-4 majority opinion in the 2000 case saying that a Nebraska ban on partial-birth abortion was unconstitutional because it lacked a health exception, even though the three-day long abortion procedure is never necessary to protect a woman’s health.

Constitutional scholar Paul Linton wrote Thomas More’s brief and compiled official data as to actual abortion practices in states whose own partial-birth abortion prohibitions were in effect prior to the Supreme Court’s first partial-birth abortion decision six years ago.
"These statistics put the lie to abortionists’ claims" that the ban is too broad and prohibits other abortion procedures as well, the brief explained.

"Far from abortionists being clueless as to whether they could perform late-term abortions by methods other than the partial-birth procedure, official data showed that other late-term abortion methods were used routinely despite the state bans on partial-birth abortion," Linton wrote for the pro-life law firm.

Thomas More Society’s Chief Counsel, Tom Brejcha, said, "These official reports prove there was no ‘undue burden’ on abortion rights and that the laws were not impermissibly ‘vague.’ Lower courts erred in taking the abortionists’ false claims at face value."

Meanwhile, attorneys with the Christian Legal Society urged the high court to reverse the decision by the 9th Circuit Court of Appeals striking down the Congressional partial-birth abortion ban.

“As Senator Moynihan told us in 1997, this gruesome practice is ‘infanticide and one would be too many,’" CLS Director Samuel B. Casey said.

"We are not only urging the Court to uphold the current ban because it does not violate the Court’s previous instructions as to when such a ban is constitutional, but we are also asking the Court to overrule those instructions and, going forward, leave such health and safety determinations to the federal and state legislative branches where our constitutional heritage and prudential experience suggest such determinations are best made," Casey explained.

Richard W. Garnett of Notre Dame Law School and Michael Stokes Paulsen of University of Minnesota Law School wrote the brief for the pro-life law firm.

They argue that the judicial doctrine of stare decisis, which calls for respecting prior decisions of a court on the same or similar issues, has no force when the prior decision was decided by a split and vigorously divided court, and has not received general acceptance by the American public.

CLS was joined on the brief by the National Association of Evangelicals, Pro-Life Legal Defense Fund, Alliance Defense Fund and Concerned Women for America.