The Supreme Court and Partial-Birth Abortion

The Supreme Court and Partial-Birth Abortion

Editor's note. The special January NRL News Commemorative Issue begins rolling off the presses in a few hours. Please: contact us now, if you haven't already, to order extra copies of "Roe v. Wade: A Decision Under Siege." Call Regina at 202-626-8828.

As you can imagine, I am the throes of last-minute details. So by portion of this TN&V will be very brief!

Were the schedule different we could include in the Commemorative edition a story about a very important decision coming this Friday from the Supreme Court. The justices have already heard a case that challenges New Hampshire's parental notification law.

On January 6 (or possibly January 9), the Court will decide whether to review a lower-court ruling that has blocked enforcement of the Partial-Birth Abortion Ban Act. As you recall, President George W. Bush signed that bill into law November 5, 2003.

As you also no doubt recall, back in 2000 five justices of the Supreme Court, including soon-to-retire 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. (Stenberg v. Carhart, June 28, 2000). This ruling struck down the ban on partial-birth abortion that had been enacted by Nebraska, and rendered unenforceable the similar bans that more than half the states had enacted.

The rest of this edition of TN&V is an explanation of the legal situation provided by the NRLC Federal Legislation Office. It is VERY much worth reading. Talk to you late on Friday.
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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 complete official text of the law, in a searchable format, is here: http://www.nrlc.org/abortion/pba/partial_birth_abortion_Ban_act_final_language.htm

The law would allow the method if it was ever necessary to save a mother's life.

The federal law has faced legal challenges in three different federal circuits, and its enforcement has been blocked by court orders. Federal district courts in all three circuits ruled that the federal law violated the 2000 Supreme Court ruling. In one of these cases, Gonzales v. Carhart, that adverse judgment was affirmed by the U.S. Court of Appeals for the Eighth Circuit. The Bush Administration has asked the Supreme Court to review the Eighth Circuit ruling, and it is that "cert petition" on which the Court will conference on January 6.

"In 2000, five justices of the Supreme Court in effect ruled that Roe v. Wade guarantees the right to perform partial-birth abortions at will," said NRLC Legislative Director Douglas Johnson. "Unless the Court accepts this new case and abandons the extreme position it took in 2000, partly born premature infants will continue to die by having their skulls punctured with seven-inch scissors."

Meanwhile, the other two legal challenges to the federal law remain under review by the U.S. courts of appeals for the Second Circuit and Ninth Circuit. In addition, 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, holding that a similar state law, banning "partial birth infanticide," contradicts the 2000 Supreme Court decision. (Richmond Medical Center for Women v. Hicks)