Challenge to Abortion Ban Will Be Considered
The Supreme Court on Monday said it will hear arguments in a Department of Justice appeal to a 9th U.S. Circuit Court of Appeals ruling that a federal law banning so-called "partial-birth" abortion is unconstitutional, the Washington Post reports. This is the second such case this year that the court has agreed to hear (Goldstein, Washington Post, 6/20).
President Bush signed the Partial-Birth Abortion Ban Act (S 3) into law in November 2003, but federal judges in California, New York and Nebraska each issued temporary restraining orders to prevent enforcement of the ban. The decisions were upheld by three-judge panels of the 9th Circuit Court of Appeals in San Francisco, the 2nd Circuit Court of Appeals in New York City and the 8th Circuit Court of Appeals in St. Louis.
Each lawsuit alleged that the law is unconstitutional because of the absence of a health exception. The Supreme Court in February agreed to hear oral arguments this fall in Gonzales v. Carhart, which is DOJ's appeal of the 8th Circuit Court panel's ruling (California Healthline, 2/22).
According to CQ Today, the 2nd Circuit Court asked for further briefings in the case after the Supreme Court ruled in a separate case, Ayotte v. Planned Parenthood, which involved an abortion restriction in New Hampshire. After the Supreme Court agreed to hear the appeal of the 8th Circuit Court's decision, the 2nd Circuit Court suspended action on the partial-birth abortion case, CQ Today reports (CQ Today, 6/20).
After the Supreme Court agreed to hear the Carhart case, Solicitor General Paul Clement, arguing on behalf of the Bush administration, requested that the court not hear an appeal of the 9th Circuit Court ruling -- known as Gonzales v. Planned Parenthood -- until it ruled on the 8th Circuit Court's decision (AP/Guardian, 6/19). Bush administration attorneys told the court that the cases mirrored each other in important aspects, so the court did not have reason to "delay the ultimate resolution of the extraordinarily important question of the [Partial-Birth Abortion Ban Act's] constitutionality," the New York Times reports. However, the Planned Parenthood Federation of America urged the court to take the 9th Circuit Court appeal because the decision in that case was broader than the 8th Circuit's decision.
The 8th Circuit's ruling was based mainly on the fact that the law lacked a health exception, while the 9th Circuit's decision provided the "most complete available record" on the potential impact of the act, according to PPFA (Greenhouse, New York Times, 6/20).
In the 9th Circuit ruling, Judge Stephen Reinhardt wrote for the majority that they were "reluctant to invalidate an entire statute," but "after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation." The ruling added that the law "created a risk of criminal liability for virtually all abortions performed after the first trimester, which the district court found placed a substantial obstacle in the path of abortion-seekers" (Preston, New York Times, 2/1).
The 9th Circuit Court panel also said the lawmakers deliberately excluded a health exception from the law. The Supreme Court did not say whether it will consider the two cases together, the Post reports (Washington Post, 6/20).
The arguments likely will not be heard until November or December, according to the Times (New York Times, 6/20).
NPR's "Day to Day" on Tuesday reported on the announcement. The segment includes comments from Slate legal analyst Dahlia Lithwick (Chadwick, "Day to Day," NPR, 6/19). The complete segment is available online RealPlayer.This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.