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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"When a woman's health is at stake, women would like their physicians to make appropriate medical decisions – not their representatives in Congress," says Vicki Saporta of the National Abortion Federation.Skip to next paragraph
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In addition, the law places doctors in the difficult position of potentially having to consider their own legal liability rather than focusing exclusively on their patients' well-being, abortion-rights activists say. This could deter some doctors from performing second trimester abortions, they add.
Abortion opponents say that the law reflects the legal reality that the process of birth converts a fetus into a person with rights independent of the rights of the mother. The partial-birth abortion law draws a bright line to prevent a procedure that comes dangerously close to infanticide, they say.
In their written briefs to the high court, both sides are directing the thrust of their arguments at Kennedy.
In the 2000 Nebraska case, Kennedy didn't just issue a dissent. He launched an impassioned 25-page attack on the majority's position. He accused his fellow justices of betraying his understanding of the 1992 landmark Casey decision.
"When the court reaffirmed the essential holding of Roe, a central premise was that the states retain a critical and legitimate role in legislating on the subject of abortion," Kennedy wrote in his Nebraska dissent. He said the state's partial-birth abortion law was "well within the state's competence to enact."
Solicitor General Clement echoes that argument in his brief saying that Congress shares the same legislative power as the states to enact a ban. He says that Congress's legislative finding that partial-birth abortion is never medically necessary is entitled to deference by the courts.
Lawyers challenging the law are also reaching out to Kennedy in a different way. They are appealing to the Justice Kennedy who has taken a firm stance against Congress encroaching into what Kennedy views as the domain of the Supreme Court to identify and enforce the boundaries of constitutional rights.
In the partial-birth abortion law, the lawyers say, Congress is attempting to redefine abortion rights in open defiance of Supreme Court rulings protecting those rights.
"Congress has not merely promulgated a measure that poses a significant threat to women's health. Of equal concern, Congress has issued a rebuke to this court, challenging its pre-eminence as the branch of government whose duty it is to say what the law is," writes Priscilla Smith of the Center for Reproductive Rights in her brief.
Roe v. Wade (1973) – The Supreme Court's 7-to-2 ruling established that a woman has a constitutional right to choose to end her pregnancy.
Planned Parenthood v. Casey (1992) – The high court's 5-to-4 decision reaffirmed the central holding of Roe v. Wade, while allowing that states may regulate abortion procedures as long as they don't put an undue burden in the path of a woman seeking an abortion.
Stenberg v. Carhart (2000) – In a 5-to-4 vote, the high court struck down a Nebraska statute that banned so-called partial-birth abortions. The court said the state law did not include an exception to protect the health of a woman and thus created an undue burden on the right to an abortion.
– Material derived from CQ Researcher, Cornell Law School