Roberts court faces first abortion cases
New Supreme Court justices could tip the balance to uphold a ban on so-called partial-birth option.
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On the other side, the liberal wing of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer is expected to hold firm. That would place Justice Anthony Kennedy in position to cast the deciding vote.Skip to next paragraph
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But a vote by Justice Kennedy to uphold the statute wouldn't signal the potential demise of Roe, analysts say.
"There is a tremendous amount of space and a tremendous amount of time in years between the upholding of this statute [if the court votes to uphold it] and any direct threat to Roe," says David Garrow, a US legal historian who teaches at Britain's Cambridge University.
Although he might join the court's conservative wing to uphold the statute, Kennedy nonetheless remains a centrist who voted with Justices O'Connor and Souter to affirm the central holding of Roe in the 1992 Casey decision. Rather than enabling an all-out conservative assault on liberal abortion precedents, Kennedy is more likely to use his swing-vote power to moderate the more aggressive preferences of his conservative colleagues, some analysts say.
At issue in the two cases now before the court is to what extent states and the federal government can pass laws restricting abortions without including a health exception.
When Congress passed its partial-birth abortion statute in October 2003, lawmakers announced that they intentionally did not include a health exception in the statute because "a partial-birth abortion is never necessary to preserve the health of a woman."
That conclusion directly conflicts with the holding of the five-justice majority in the 2000 Nebraska case. Lawmakers said they reached a different conclusion based on evidence presented at various trials and at congressional hearings.
The law was immediately challenged in three federal courts. All three struck it down as unconstitutional, in part because it lacked a health exception as required in the high court's 2000 Nebraska decision. Abortion providers and other medical experts testified at the trials and disputed the congressional finding that the procedure was never necessary to preserve a woman's health.
So-called partial-birth abortion is not a common procedure, but in certain instances, medical authorities say, it can be the safest option for women in their second trimester of pregnancy. The procedure involves widening the cervix, using forceps to extract the fetus, and then killing the fetus once it is partially removed from the woman.
The Partial-Birth Abortion Ban Act does not use medical terms to identify the outlawed procedure. It subjects doctors to two years in prison and imposes fines if during the course of performing an abortion either the head or the lower half of the fetus's body to the navel is outside the mother at the time the doctor kills the fetus.
Under the terms of the law, a doctor would avoid liability by killing the fetus prior to extracting it, rather than extracting it first.
Abortion supporters say the new law, if upheld, would force doctors to alter their abortion procedures to comply with a congressional mandate rather than having the flexibility to follow their professional judgment about the best treatment option.