Abortion opponents see chance for Supreme Court shift

The Bush administration has set up the issue for the term that begins next Monday, asking the justices to overturn a ruling that declared unconstitutional a national ban on so-called partial birth abortion.

What is unknown is whether Chief Justice nominee John Roberts and the unnamed successor to Justice Sandra Day O’Connor will provide the deciding votes on the divisive and emotional issue.

“The people who have been looking to the court to resolve hot button issues are not going to give the court much of an intermission,” said Jonathan Entin, a law professor at Case Western Reserve University.

Although the case does not challenge Roe v. Wade, the 1973 ruling that established a woman’s right to abortion, “it will have symbolic significance,” Entin said.

The appeal follows a two-year, cross-country legal fight over the law pushed by congressional Republicans and highlights the power that Bush justices will have. Just a few months ago, there would have been five votes to strike down the law which forbids a type of late-term abortion that critics call partial birth abortion.

The outcome is now uncertain with the retirement of O’Connor.

“This is the first federal restriction on abortion that’s been challenged. Combine that with a changing at the Supreme Court, it makes it a compelling case,” said Jay Sekulow, chief counsel of the conservative American Center for Law and Justice.

Abortion was already expected to be a major subject in the next round of confirmation hearings, just as it was with the Roberts hearings. The Senate began debating Roberts’ nomination on Monday with confirmation expected later this week.

President Bush had supported the 2003 law outlawing what he termed an “abhorrent practice.” President Clinton twice vetoed similar bills, arguing that they lacked an exception to protect the health of the mother, something the Supreme Court has said is required in abortion laws.

The law signed by Bush was challenged even before it took effect and has never been enforced. Challengers won rulings in New York, California and Nebraska that the law was unconstitutional because of the lack of a health exception.

The Supreme Court is already dealing with a similar issue, in a test of New Hampshire’s parental notification statute. That case turns on whether the state law is unconstitutional because it lacks an exception allowing a minor to have an abortion to protect her health in the event of a medical emergency.

The court should review both cases, Solicitor General Paul Clement said in the appeal, filed Friday and released on Monday.

“This case involves the constitutionality of a significant act of Congress that has been invalidated and permanently enjoined by the lower courts,” wrote Clement, the government’s top Supreme Court lawyer.

The federal Partial-Birth Abortion Ban Act prohibits a type of abortion, generally carried out in the second or third trimester, in which a fetus is partially delivered before being killed.

In its last major abortion ruling, the Supreme Court on a 5-4 vote struck down Nebraska’s partial-birth abortion law in 2000. O’Connor, who voted with the majority, said that a similar law could pass muster if it were limited to that particular procedure and included an exception to preserve the mother’s life and health.

Chief Justice William H. Rehnquist, who died earlier this month, had voted to uphold the Nebraska law. It is likely, but not guaranteed, that Roberts would vote similarly.

The latest case also comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians. Doctors who perform the procedure contend it is the safest method of abortion when the mother’s health is threatened by heart disease, high blood pressure or cancer.

A judge in Lincoln, Neb., ruled that the law was unconstitutional, and the 8th U.S. Circuit Court of Appeals in St. Louis agreed in July. Federal judges in New York and San Francisco also declared the law unconstitutional and hearings are planned in October before appeals courts.

The case is Gonzales v. Carhart, 05-380.

———

On the Net:

Supreme Court: http://www.supremecourtus.gov/