Washington Post, February 23, 2006
Abortion Case to Test New Justices
Court Will Review 'Partial Birth' Ban
Author: Charles Lane
The Supreme Court agreed yesterday to decide whether a 2003 federal ban on the procedure that critics call "partial birth" abortion is constitutional, setting the stage for its most significant ruling on abortion rights in almost 15 years.
Without comment or recorded dissent, the court granted the Bush administration's request to review a lower court's ruling striking down the law, which passed Congress overwhelmingly but has yet to be enforced.
The case will test the new balance of abortion opinion on a court whose membership now includes two Bush appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. Given their conservative leanings and the court's past vote count on the issue, the federal ban's chances appear strong.
Arguing that an appeals court's invalidation of an act of Congress was worthy of the court's attention, the Bush administration persuaded the justices to take the case without one usual criterion for doing so -- a division among lower courts. Since the first appeals court struck down the law last year, two other appeals courts have followed suit.
The procedure, performed by fewer than two dozen physicians in the country and known medically as "intact dilation and evacuation," takes place relatively late in pregnancy, generally after the 20th week, when the fetus's head may become lodged in the birth canal. Under those circumstances, the doctors draw the fetus out feet first, then puncture the skull to vacuum out the brain and collapse the head, permitting the rest of the fetus to be removed.
It is unclear how often the procedure is done. Abortion rights organizations say the annual number is in the hundreds; antiabortion groups say thousands. There were 1.3 million abortions in the United States in 2002, of which 88 percent occurred in the first 12 weeks of pregnancy, according to the Guttmacher Institute.
What is clear is that few other issues in American politics trigger stronger emotions. A 2005 poll by the Quinnipiac University Polling Institute showed that three-quarters of the public supports a ban, except when a woman's life is at stake.
But some physicians, including the plaintiff in this case, Leroy Carhart of Nebraska, say the procedure is sometimes safer than the alternatives, which may include the dismemberment of the fetus before its extraction.
For the Supreme Court, the issue is whether the constitutional right to have an abortion means that any law regulating this procedure must contain an exception to protect a woman's health.
In a 1992 decision reaffirming the abortion right first announced in Roe v. Wade 19 years earlier, the court barred abortion regulations that pose an "undue burden" on women.
The court applied that ruling in 2000 to a Nebraska ban on the procedure that was similar to laws in 25 states. It struck the law down 5 to 4, ruling that it was so vaguely written that it could also criminalize other procedures, and that it lacked an exception for the woman's health.
The federal Partial-Birth Abortion Ban Act of 2003 was Congress's answer to that ruling. It banned the procedure except when necessary to save the life of the woman. And it deliberately omitted an exception to protect the woman's health. Indeed, as drafted by its Republican sponsors, the law formally declared, based on expert testimony, that such an abortion could never be necessary to preserve health.
The U.S. Court of Appeals for the 8th Circuit, based in St. Louis, said in July that the lack of a health exception made the law unconstitutional under the 2000 Supreme Court ruling that had required a health exception whenever "substantial medical authority" supports the necessity of the procedure. Congress's findings to the contrary were not sufficient, the 8th Circuit ruled.
But the Bush administration argues that the federal law is more precisely drawn than the Nebraska statute, and that the courts must defer to Congress's findings regarding the medical necessity of the procedure.
Oral argument in the case, Gonzales v. Carhart , No. 05-380, is likely to take place during the run-up to the 2006 congressional elections, and the high political stakes were evident from the statements of organizations on both sides of the abortion issue.
"We fear the new court is ready to further undermine a woman's access to legal abortion," says Jennifer K. Brown, vice president and legal director of Legal Momentum, a women's rights organization.
Douglas Johnson, legislative director of the National Right to Life Committee, said, "Unless the Supreme Court now reverses the extreme position that five justices took in 2000, partly born premature infants will continue to die by having their skulls punctured by seven-inch scissors."
When the court voted 5 to 4 to strike down Nebraska's ban on the procedure in 2000, former justice Sandra Day O'Connor cast the deciding vote.
She is no longer on the court and has been replaced by Alito, who sat on his first oral argument yesterday. As a federal appeals judge, Alito voted to strike down a New Jersey ban on the procedure, saying that his court must follow the Supreme Court's 2000 ruling.
But in 1991, he voted to allow Pennsylvania to require spousal notification before abortion. He said that the state's rule, and its exceptions, did not pose an "undue burden." That view was overruled by the Supreme Court in 1992.
And as a young Reagan administration lawyer, Alito expressed opposition to the court's landmark abortion rights case, Roe v. Wade .
Roberts replaced the late chief justice William H. Rehnquist, a strong foe of abortion rights. Roberts has a thinner abortion record than Alito but has also come up to the court through conservative ranks.
Three dissenters from the court's 2000 ruling, justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, are still on the court.
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