Partial-Birth Abortion Case Will Dominate Supreme Court’s Next Term

National   |   Steven Ertelt   |   Sep 28, 2006   |   9:00AM   |   WASHINGTON, DC

Partial-Birth Abortion Case Will Dominate Supreme Court’s Next Term Email this article
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by Steven Ertelt Editor
September 28
, 2006

Washington, DC ( — The Supreme Court begins its next term next month and a case concerning the national ban on partial-birth abortions will be one of the most ideologically controversial lawsuits the high court considers. The case will also give the first real glimpse into how new judges John Roberts and Samuel Alito will rule on abortion.

After President Bush signed the partial-birth abortion ban into law, pro-abortion groups launched three lawsuits against it and federal appeals courts in Nebraska, New York and California declared the ban unconstitutional.

Groups on both sides of the abortion debate have joined the Justice Department in submitting legal papers for or against the partial-birth abortion ban.

The high court begins its consideration of the case with a 2000 ruling which saw the court strike down a Nebraska ban saying it was unconstitutional because it lacked a health exception.

Pro-life groups are hopeful 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. The now-retired justice wrote the 5-4 majority opinion in the 2000 case

Roberts replaced pro-life Chief Justice William Rehnquist and, if both he and Alito vote in favor of the Congressional ban, they will have swung the court to a 5-4 majority opposing partial-birth abortions.

Despite such a vote, the Supreme Court is still 5-4 in favor of legalized abortion in general because Justice Anthony Kennedy, who voted with the minority in 2000, favors upholding Roe v. Wade.

The court is expected to hear oral arguments in the partial-birth abortion case on November 8 and announce its ruling in early 2007 — perhaps near the January 22 anniversary date of the Roe ruling.

Still, the decision will be an important barometer on abortion and Steven Shapiro, the New York-based legal director of the American Civil Liberties Union, told Bloomberg News it will "tell us a little bit about the soul of the Roberts court."

Though both Roberts and Alito talked about respected Supreme Court precedents, both gave examples of how and why the high court could reverse itself.

Richard Garnett, a law professor at the University of Notre Dame told Bloomberg that both could argue for reversing the 2000 Nebraska decision and remain within the parameters of the kind of jurisprudence they outlined in Senate hearings on their nominations.

"They could overrule it and still maintain plausibly that the role of judges is supposed to be humble and restrained and respectful of precedent,” Garnett said.