Pro-Life Attorney: Partial-Birth Abortion Ban Hinges on Kennedy Vote

National   |   Steven Ertelt   |   Nov 5, 2006   |   9:00AM   |   WASHINGTON, DC

Pro-Life Attorney: Partial-Birth Abortion Ban Hinges on Kennedy Vote Email this article
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by Steven Ertelt Editor
November 5
, 2006

Washington, DC ( — A pro-life attorney says he thinks next week’s hearing on a Congressional partial-birth abortion ban will lead to a vote that will ultimately hinge on Justice Anthony Kennedy. Kennedy voted with the minority in upholding a Nebraska ban in a previous case but the pro-abortion justice’s vote is never certain.

His vote may also be less certain with the court’s previous deciding vote in close cases — Justice Sandra Day O’Connor — now retired.

The high court is slated to hear oral arguments in cases on Wednesday involving two of the federal challenges abortion advocates filed against the ban.

When considering how to handle a resolution in the case the court will begin with its 2000 precedent setting decision in Stenberg v. Carhart, where it struck down a Nebraska ban saying it lacked a health exception even though abortions damage women’s physical and mental health.

Kennedy dissented in that decision but Ben Bull, chief counsel for the Alliance Defense Fund told Agape Press that he thinks Kennedy will keep his position consistent when he rules on the federal ban.

He indicated Kennedy will vote along with the two established pro-life judges and the two new Bush appointees in a five justice pro-life group.

"I submit to you that, as we say out west, the ‘smart money in Las Vegas’ would say that Kennedy forms a new majority with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito affirming the federal statue banning partial-birth abortion," Bull said, according to Agape Press.

Kennedy stressed the fact that "there are no studies — no studies — that support the contention that the partial-birth abortion procedure is any safer than any other kind of abortion procedure," Bull notes.

Kennedy has said that, having looked at the studies on partial-birth abortion thoroughly, he has found that "there are no studies that show this is a superior procedure for purposes of health, Bull said.

"Remember, this case next Wednesday is … going to turn largely on whose studies are accepted by the court," Bull concluded.

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.

New Chief Justice John 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 Kennedy favors upholding Roe v. Wade.