Supreme Court Justices Tip Hands Slightly on Partial-Birth Abortion

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

Supreme Court Justices Tip Hands Slightly on Partial-Birth Abortion Email this article
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by Steven Ertelt Editor
November 9
, 2006

Washington, DC ( — While pro-abortion lawyers and attorneys for the Bush administration presented their cases regarding the federal partial-birth abortion ban, observers listened. They hoped for clear signs from some of the judges about how they would rule in the case and while a few of the justices made it clear, Justice Anthony Kennedy did not.

Two hours of oral argument produced few clues as to how members of the nation’s high court would vote on the Congressional ban on partial-birth abortions.

The current court is expected to have a 4-4 breakdown on the ban with Kennedy casting the deciding vote.

After a review of the audio transcript of the hearings, the court’s pro-abortion members, as expected, asked questions designed to poke holes in Solicitor General Paul Clement’s case.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer all sounded skeptical about departing from their previous ruling in the 2000 case on Nebraska’s ban and ruling a partial-birth abortion prohibition constitutional this time.

On the court’s pro-life side, Justice Clarence Thomas, who supported Nebraska’s ban in the previous case, was absent due to an illness.

But of the remaining judges, only Chief Justice John Roberts said much. His questions made it appear he believed the law should be upheld.

At one point, pro-abortion lawyer Priscilla Smith claimed Congress’s findings that the procedure is never medically necessary were "simply unreasonable" and should carry no legal weight.

Roberts disagreed and asked Smith if the "marginal benefit in safety" from using the partial-birth abortion procedure is "enough to override the state’s articulated interest?"

Kennedy had asked Smith earlier how often the partial-birth abortion procedure was medically needed and Smith admitted there are no statistics showing that.

Roberts played on that point several times during the debate and told Smith "we don’t have any record evidence about how often the complications arise, so it’s hard to get a handle on exactly what the difference is in terms of safety."

Meanwhile, new Justice Samuel Alito sat through the two hour hearing without saying anything.

Alito ruled previously on a partial-birth abortion ban when he served on the appeals court and he participated in a three judge panel that overturned a New Jersey partial-birth abortion ban.

Alito voted with the majority to overturn the ban, but the lead judge waited to rule in the case until the Supreme Court issued its decision on the Nebraska statute. Having to follow Supreme Court precedent, he determined the ban was unconstitutional but chided his colleagues for waiting to make a decision until the high court weighed in — making it appear he would have voted to uphold the state ban if no high court precedent existed.

Antonin Scalia did not say much during the hearings, but his public comments in two recent forums leave little doubt where the venerable justice stands. He has made it clear he doesn’t think the Supreme Court should be interfering when it comes to legislative decisions on abortion.

As one of the four justices who voted to uphold the Nebraska partial-birth abortion ban, there’s every reason to believe he will come to the same conclusion about the Congressional law.

That leaves Justice Anthony Kennedy — who issued a stern dissent in 2000 backing the partial-birth abortion statute and describing the abortion procedure as "abhorrent" — as the key figure in the case.

He did not tip his hand and appeared to take both sides during the questioning.

He repeated one concern he had in the Nebraska ban when he told Smith, "Your argument is that there is always a constitutional right to use what the physician thinks is the safest procedure," implying he disagreed.

But later, he expressed his worry that there may be an occasion when a partial-birth abortion is medically necessary even though most doctors don’t agree the three-day-long abortion procedure is every called for to protect a woman’s health.

Clement made that point clear when he told the court "partial birth abortions were never medically necessary, and that safe alternatives were always available such that no woman would be prevented from terminating her pregnancy."

Kennedy seemed to agree with that analysis and said partial-birth abortions might be "purely elective and not medically necessary."