Supreme Court To Hear Arguments on Federal Abortion Ban
The Supreme Court on Tuesday announced without comment that it will hear arguments in the Department of Justice's appeal to reinstate a federal law banning so-called "partial-birth" abortion, which has been struck down in three lower courts for lacking an exception for the health of the pregnant woman, the Washington Post reports (Lane, Washington Post, 2/22).
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, respectively.
The restraining orders were issued in response to lawsuits filed by the Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers.
Each lawsuit alleged that the law is unconstitutional because of the absence of a health exception. In place of a health exception, the law includes a long "findings" section that documents medical evidence presented during congressional hearings that, according to supporters of the law, indicates that the procedures banned by the law are never medically necessary. DOJ in September 2005 appealed U.S. District Judge Richard Kopf's September 2004 ruling in a Lincoln, Neb.-based federal court to the Supreme Court.
Kopf's decision declared the law unconstitutional, a ruling that was upheld by the 8th Circuit Court panel (California Healthline, 9/27/05).
Oral arguments in the case, which is called Gonzales v. Carhart, are expected to be heard this fall (Bravin, Wall Street Journal, 2/22).
Nebraska-based physician Leroy Carhart in 1997 sued to strike down a similar Nebraska law as unconstitutional, and the Supreme Court agreed in a 5-4 decision in the 2000 Stenberg v. Carhart case (California Healthline, 9/27/05). The physicians -- including Carhart -- who are challenging the law, wrote in a brief that the procedures banned by the act provide safety benefits to women including protecting their fertility (Greenhouse, New York Times, 2/22).
In the appeal to the Supreme Court, Solicitor General Paul Clement wrote in the appeal that the lower courts should have deferred to Congress instead of medical experts who testified in the case (California Healthline, 9/27/05). He added that Congress' findings concerning the medical necessity of partial-birth abortion should have been given "substantial deference," which was not an issue in the 2000 case because it was a state case and not a federal one (New York Times, 2/22).
Fifteen states support DOJ's appeal, according to the Houston Chronicle (Reinert, Houston Chronicle, 2/22).
Since the court invalidated the Nebraska law in the Stenberg case, Chief Justice John Roberts has replaced former Chief Justice William Rehnquist, who voted to uphold the law, and Justice Samuel Alito has replaced former Justice Sandra Day O'Connor, who voted with the majority in the case (Washington Post, 2/22). Alito, while serving on the 3rd Circuit Court of Appeals in 2000, joined a decision applying the Stenberg v. Carhart decision to strike down a similar New Jersey law.
The majority in that decision said the New Jersey law was "nearly identical" to the Nebraska law. However, Alito dissented from the majority opinion that said the New Jersey law was "so vague as to encompass all forms of abortion" (Cohen, Newark Star-Ledger, 2/22).
The Supreme Court's decision to hear the case is "somewhat surprising," given the Carhart precedent and appeals court rulings, the Philadelphia Inquirer reports. "[The] decision to hear this case is a dangerous act of hostility aimed squarely at women's health and safety," PPFA President Cecile Richards said (Henderson, Philadelphia Inquirer, 2/22).
However, according to the Times, lower court invalidations of federal laws carry an "almost automatic claim on the justices' attention" and not accepting DOJ's appeal would have been "highly unusual" (Greenhouse, New York Times, 2/22).
"An overwhelming bipartisan majority in Congress determined that this abhorrent procedure has no place in civilized society," Rep. Steve Chabot (R-Ohio), who helped write the Partial-Birth Abortion Ban Act, said, adding, "I'm very hopeful that the Supreme Court will ultimately agree and recognize that the federal courts should not continue to block implementation of this law" (CQ HealthBeat, 2/21).
Jay Sekulow, chief counsel for the American Center for Law and Justice, added that his group hopes the court finds the law "not only proper, but constitutional as well" (BBC News, 2/21).
Priscilla Smith, director of CRR's Domestic Legal Program, said, "This case provides a perfect opportunity to make clear to Congress and the Bush administration that they can't ride rough-shod over the law of the land" (Greene, New York Post, 2/22).
Several broadcast programs reported on the Supreme Court's decision to consider the case:
- ABCNews' "World News Tonight": The segment includes comments from Brad Berenson, former White House counsel; Carhart; Nancy Northup, president of CRR; and Sekulow (Tapper, "World News Tonight," ABCNews, 2/21). Additional ABCNews analysis is available online.
- CBS' "Evening News": The segment includes comments from Alito; Andrew Cohen, legal analyst for CBS; Eve Gartner, senior staff attorney with PPFA; and Rep. Chris Smith (R-N.J.), who co-sponsored the legislation (Andrews, "Evening News," CBS, 2/21). The complete segment is available online in RealPlayer.
- CBS' "Evening News": CBS legal analyst Jan Crawford Greenberg discusses how the addition of Alito and Roberts to the Supreme Court might affect the ruling in the case (Crawford Greenberg, "Evening News," CBS, 2/21). The complete segment is available online in RealPlayer.
- NBC's "Nightly News": The segment includes comments from Sekulow and Smith (Williams, "Nightly News," NBC, 2/21). The complete segment is available online in Windows Media.
- NPR's "All Things Considered": The segment includes comments from Sekulow (Totenberg, "All Things Considered," NPR, 2/21). The complete segment is available online in RealPlayer. Expanded NPR coverage is available online.
- NPR's "Day to Day": The segment includes comments from Dahlia Lithwick, legal analyst for Slate (Brand, "Day to Day," NPR, 2/21). The complete segment is available online in RealPlayer.
- PBS' "NewsHour with Jim Lehrer": The segment includes comments from Douglas Kmiec, professor of constitutional law at Pepperdine University, and Goodwin Liu, constitutional law professor at the University of California-Berkeley School of Law (Suarez, "NewsHour with Jim Lehrer," PBS, 2/21). The complete segment is available online in RealPlayer.