The Supreme Court announced that it will hear a case on the constitutionality of a federal law prohibiting partial birth abortion. The high court will likely have to decide whether or not to uphold a previous decision that struck down a Nebraska ban on partial birth abortion because the law did not contain an exception for the health of the mother.

When the US Congress passed the partial birth abortion ban in 2003 it did so without a health exception but only after conducting an extensive finding of facts in which it determined that the procedure was never required to preserve a mother's health. Three separate circuit courts of appeal have struck down the federal law citing Stenberg v. Carhart, the 2000 case which invalidated the Nebraska law forbidding partial birth abortion.

The case will be the first significant abortion case for the new Associate Justice Samuel Alito and Chief Justice John Roberts. Alito replaced Justice Sandra Day O'Connor who was the deciding vote in Stenberg which was decided by a narrow tally of 5 to 4. The questions raised in the new case will be similar to those addressed in Stenberg in that the court will determine whether a partial birth abortion ban must contain an exception for the health of the mother.

William Saunders, an attorney with the Family Research Council who serves as Senior Fellow and Director of their Center for Human Life and Bioethics, says it will be difficult to uphold the federal ban without also striking at Stenberg. "This is on a collision course with Stenberg. If you uphold the ban you will have to overrule at least part of Stenberg," he said.

Saunders said the US government will likely put forward a two pronged argument. First they will say that the law should be upheld based on the Congressional finding of facts. Such findings are to be accorded great deference according to previous Supreme Court cases and the government will argue that the appellate courts were wrong to dismiss those findings. Secondly, the US will likely argue that Stenberg was wrongly decided and that it should be overturned.

In Stenberg, Associate Justice Anthony Kennedy, who had voted to preserve Roe v. Wade in the past, voted in support of the partial birth abortion ban. In his dissent he argued that O'Connor's opposition to the Nebraska ban was inconsistent with her opinion in the landmark case Planned Parenthood v. Casey. Kennedy was joined by the recently deceased Chief Justice William Rehnquist and justices Antonin Scalia and Clarence Thomas in defending the Nebraska law. This would indicate that Kennedy, Scalia and Thomas are likely to vote in favor of preserving the federal ban as well. If President Bush's new appointees, Alito and Roberts, join them, there will be enough votes to keep the federal ban in effect.

A date for oral arguments in the case has not yet been set but they will take place sometime during the next term which is set to start in October.

Copyright by Mark Adams
Culture of Life Foundation
http://www.culture-of-life.org