President Bush signed that measure into law on November 5, 2003. He said at the time, "In passing this legislation, members of the House and Senate made a studied decision based upon compelling evidence. The best case against partial birth abortion is a simple description of what happens and to whom it happens. It involves the partial delivery of a live boy or girl, and a sudden, violent end of that life. Our nation owes its children a different and better welcome. The bill I am about to sign protecting innocent new life from this practice reflects the compassion and humanity of America."

Since passage, three different federal courts of appeals have blocked enforcement, holding that the federal law conflicts with Stenberg v. Carhart, the 2000 Supreme Court decision in which five justices invalidated Nebraska's ban on partial-birth abortion.

Of the three federal court rulings, the Supreme Court will be evaluating a July 2005, ruling by the U.S. Court of Appeals for the Eighth Circuit (Gonzales v. Carhart).

There are a host of issues that must be kept separate, lest the unwary reader miss what has happened and may happen. I'll just mention three.

#1. The Nebraska law stricken by the High Court is different from the federal Partial-Birth Abortion Ban Act. In Stenberg, five justices of the Supreme Court, including recently retired Justice Sandra Day O'Connor, ruled that the abortion "right" originally created in Roe v. Wade allows an abortionist to perform a partial-birth abortion any time he sees a "health" benefit, even if the woman and her unborn baby are entirely healthy. This ruling not only struck down the Nebraska's ban on partial-birth abortion that had been enacted by Nebraska, it also rendered unenforceable the similar bans that more than half the states had enacted.

As NRLC has explained, the federal law bans "partial-birth abortion," a legal term of art, defined in the law itself as any abortion in which the baby is delivered "past the [baby's] navel . . . outside the body of the mother," OR "in the case of a head-first presentation, the entire fetal head is outside the body of the mother," BEFORE being killed.

The law would allow the method if it was ever necessary to save a mother's life. However, it does not allow an abortionist to use the method any time he asserts that it might be slightly preferable to some other method, even for women with no health problems, which is what the five justices required in the 2000 ruling.

#2. The two new justices--Chief Justice John Roberts and Associate Justice Samuel Alito-have not voted on the issue of partial-birth abortion. We know that six years ago three of the still-sitting justices (Antonin Scalia, Anthony Kennedy, and Clarence Thomas) voted to uphold the Nebraska law.

But don't be misled. While it is true that Justice Kennedy did vote to uphold Stenberg, he has also joined four other justices (Breyer, Ginsburg, Souter, and Stevens) in voting in favor of Roe. And just to repeat what you all know, but many people don't, Roe stands for the proposition that abortion must be allowed for any reason until "viability" (about five and one-half months), and for "health" reasons (broadly defined) even during the final three months of pregnancy.

#3. Even though two other federal courts of appeals have also ruled against the federal law, there have been skeptics and, in one case, a dissenter.

During the summer of 2004, U.S. District Judge Richard Casey presided over a trial in New York. He rigorously questioned a number of abortionists about how partial-birth abortions are performed.

Following the trial, on August 26, 2004, Judge Casey issued an opinion stating, "The Court finds that the testimony at trial and before Congress establishes that D&X [partial-birth abortion] is a gruesome, brutal, barbaric, and uncivilized medical procedure . . . [and finds] credible evidence that D&X abortions subject fetuses to severe pain."

Nevertheless, Judge Casey also ruled that the federal ban was in conflict with the 2000 Supreme Court ruling in Stenberg.

On January 31, 2006, the U.S. Court of Appeals for the Ninth and Second Circuits also ruled that the federal law conflicts with the 2000 Supreme Court ruling. However, in the Second Circuit case (National Abortion Federation v. Gonzales), one of the two judges who voted against the law also criticized the Supreme Court's previous ruling, and another judge filed a strong dissent.

In addition to the legal challenges to the federal Partial-Birth Abortion Ban Act, the Commonwealth of Virginia has filed a request for the Supreme Court to review a ruling by the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit held that a similar state law, banning "partial birth infanticide," also contradicts Stenberg. On March 17, the Supreme Court is scheduled to vote on whether to accept the case of Herring v. Richmond Medical Center for Women.

We will, of course, have complete coverage in the March issue of National Right to Life News.

If you have any comments please contact Dave Andrusko at dandrusko@nlrc.org.