WASHINGTON (ABP) — Confirming the hopes of some and the fears of others, the new line-up of justices on the Supreme Court has agreed to revisit the issue of whether the government can ban a controversial late-term abortion procedure.
The court announced Feb. 21 that it would hear arguments in Gonzales v. Carhart. The case originated in Nebraska, where abortion providers sued to overturn a 2003 federal law that bans the procedure known by abortion-rights opponents as “partial-birth abortion.”
The announcement came on Justice Samuel Alito's first day on the bench. Much of the controversy over Alito, who was nominated by abortion-rights opponent President Bush and confirmed by a divided Senate in January, centered on whether he would vote to uphold abortion rights or restrict them.
Alito replaced Justice Sandra Day O'Connor, who often supported abortion rights on the closely-divided court.
O'Connor cast the deciding vote in the court's 2000 Stenberg v. Carhart decision. That 5-4 ruling also originated in Nebraska but struck down a state statute banning the procedure except in cases where it was necessary to save the mother's life. The decision requires any law restricting abortion to provide exceptions to protect the mother's life and health.
The federal Partial-Birth Abortion Ban Act does not provide a health exception. Instead, it cites congressional findings determining that the procedure is never medically necessary to protect a woman's health.
The disputed procedure, known medically as “intact dilation and extraction,” involves the partial delivery of a fetus, whose skull is then punctured and its contents evacuated to make it easier to pass the head through the birth canal. Doctors say it is used only in exceedingly rare circumstances.
With O'Connor's replacement by Alito, abortion-rights supporters say, the health exception may not survive the challenge.
The case came on Attorney General Alberto Gonzales' appeal of a 2005 decision by the 8th U.S. Circuit Court of Appeals, which said the federal law was unconstitutional.
“When 'substantial medical authority' supports the medical necessity of a procedure in some instances, a health exception is constitutionally required,” wrote the 8th Circuit's Judge Kermit Bye, in that court's unanimous opinion. “In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health exception.”
Two other federal appeals courts issued similar rulings in January, making a Supreme Court showdown over the law more likely.
Abortion-rights opponents reacted enthusiastically to the latest news — and its timing — Feb. 21.
“This is an incredibly important decision that puts the issue of partial-birth abortion front and center, making this gruesome procedure the next significant legal battleground in protecting human life,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, in a statement. “With the new make-up of the high court, we are encouraged that the justices will determine that the government does have a vital and compelling interest in preventing the spread of the practice of abortion into infanticide.”
Abortion-rights supporters, meanwhile, reacted with alarm. “The Supreme Court's decision to hear this case is a dangerous act of hostility aimed squarely at women's health and safety,” read a statement from Cecile Richards, president of the Planned Parenthood Federation of America, which also challenged the law in court. “Despite 33 years of Supreme Court precedent that women's health matters, the court has decided it will once again take up this issue.”
She continued: “Today's actions by the court are a shining example of why elections matter. When judges far outside the mainstream are nominated and confirmed to public office by anti-choice politicians, women's health and safety are put in danger.”
Gonzales v. Carhart does not directly address the basic constitutional right to abortion that the high court outlined in its seminal 1973 decisions on abortion rights, Roe v. Wade and Doe v. Bolton. Most legal observers agree that, even with the addition of Alito, the court still has at least five justices who have supported Roe's core finding — that women have a constitutional privacy right to abortion during the early stages of pregnancy.
-30-