New abortion case for court

Supreme Court decides to reexamine the so-called partial-birth procedure, which Congress severely limited in 2003.

The US Supreme Court has agreed to examine the constitutionality of a 2003 federal law banning so-called partial-birth abortions.

The announcement on Tuesday sets the stage for a potential high court showdown over when abortion restrictions run afoul of the US Constitution. And it once again is fueling speculation that the high court's abortion jurisprudence may be approaching a turning point with two new justices on the high court.

In January, the court dodged a major ruling over the constitutionality of a law in New Hampshire that requires teens to tell at least one parent before they can obtain an abortion. Instead, the justices sent the case back to the lower courts with instructions to consider a less drastic remedy than declaring the entire law unconstitutional.

Analysts expect the high court to take a bolder approach in either upholding or striking down the Partial-Birth Abortion Act of 2003.

The high court's decision to examine the 2003 law comes less than a month after Samuel Alito became the high court's newest justice amid speculation about how he and new Chief Justice John Roberts might vote in abortion cases.

With the passing of former Chief Justice William Rehnquist and the addition of Chief Justice Roberts, it remains unclear how many of the nine justices would vote to overturn the landmark abortion rights case Roe v. Wade. The Rehnquist court split 6-3 on the issue when it was last confronted, with Rehnquist and Justices Antonin Scalia and Clarence Thomas voting to overturn.

But in 2000, the same lineup of justices split 5-4 to strike down a partial-birth abortion ban in Nebraska. In that case, Justice Anthony Kennedy, a Roe supporter, switched sides and voted to uphold the Nebraska regulation.

Legal analysts will be watching to see if Mr. Kennedy again joins the camp of those justices prepared to uphold increased restrictions on abortions in cases that do not threaten to overturn the central holding of Roe itself. Both the New Hampshire parental notification law and the federal partial-birth abortion law are such cases, analysts say.

With the departure of Justice Sandra Day O'Connor, a key supporter of Roe and an opponent of increased abortion regulation, the five-justice majority in 2000 that struck down Nebraska's partial-birth abortion law may dwindle to four justices. If Chief Justice Roberts and Justice Alito vote to uphold the federal ban, that would swing the court to the other side, upholding the abortion restrictions rather than striking them down.

The Partial-Birth Abortion Act was passed by Congress and signed by President Bush in November 2003. It outlaws partial-birth abortions except when the procedure is necessary to save a woman's life.

In a partial-birth abortion, the fetus is partially extracted from the mother before being killed. Opponents say the vast majority of such procedures are being performed in cases of healthy women and healthy fetuses. Abortion-rights supporters say the procedure must be preserved as an option available to a woman and her physician in deciding how best to terminate an unwanted pregnancy.

In passing the Partial-Birth Abortion Act in 2003, Congress found that the procedure was never medically necessary. Other methods could be used in difficult or dangerous situations, the lawmakers determined. Congress said that the procedure could be lawfully used only when the procedure was necessary to save a woman's life.

The law was challenged in three different lawsuits filed in Nebraska, New York, and California. In all three cases, federal judges have struck down the law because they said it clashed with the high court's ruling in the 2000 partial-birth abortion case.

In that case, the Supreme Court said that any partial-birth abortion ban must include an exception permitting the procedure when it is necessary to protect a woman's health - not just in life-threatening situations.

Federal appeals courts in St. Louis, New York, and San Francisco have all ruled that the federal law created an undue burden on a woman's right to an abortion because it establishes a higher "save the life" exception rather than an exception aimed at protecting a woman's "health."

The court agreed to take up an appeal from the Eighth US Circuit Court of Appeals in St. Louis involving a challenge to the federal law by abortion providers in Nebraska.

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