Move Towards U.S. Supreme Court

Five years ago, five justices of the Supreme Court, including 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 enacted by Nebraska, and rendered unenforceable the similar bans that more than half the states had enacted. 

Nevertheless, in 2003 Congress approved and President Bush signed a national law, the Partial-Birth Abortion Ban Act.  When he signed the ban, the President called partial-birth abortion "a terrible form of violence [that] has been directed against children who are inches from birth."  He spoke the literal truth.

The law faced immediate legal challenges in three different federal circuits, and it has not gone into effect.

In one of these cases, Gonzales v. Carhart, the U.S. Court of Appeals for the Eighth Circuit ruled that the federal law violated the 2000 Supreme Court ruling.  On September 23, 2005, the Solicitor General of the United States filed a petition of writ of certiorari at the U.S. Supreme Court -- a request for the Supreme Court to review the Eighth Circuit ruling.  The petition is posted here.  It is generally expected that the justices will vote on whether to accept this case late this year (a case is accepted for review if four justices vote to do so).  If the Court accepts the case, it would be decided by the summer of 2006.

Meanwhile, the other two legal challenges proceed.  Today (October 6, 2005) in New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit will hear oral arguments in the case of Gonzales v. National Abortion Federation.  This is the Bush Administration's appeal of a 2004 ruling against the law by a federal judge in New York, Richard C. Casey.

In the summer of 2004, Judge Casey presided over a trial in which he directly questioned a number of abortionists regarding how partial-birth abortions are performed.  Attorney Cathy Cleaver Ruse has prepared a distillation of that eye-opening testimony, just published in the current (Spring 2005) issue of the Human Life Review under the title "Partial-Birth Abortion on Trial."  That article is posted in PDF format here.

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 October 20, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments in the third challenge to the federal law, Planned Parenthood v. Gonzales.

In addition, the Commonwealth of Virginia has until early December to decide whether to seek Supreme Court review of 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)

Among currently sitting Supreme Court justices, six (including Sandra Day O'Connor) have voted in favor of Roe v. Wade -- that is, in support of the doctrine 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.  Two justices (Antonin Scalia and Clarence Thomas) have voted to overturn Roe, and one (John Roberts) has not voted on the matter.  Justice Anthony Kennedy, although a supporter of Roe, voted in the 2000 Stenberg case to allow Nebraska to ban the partial-birth abortion method.

A refutation of the myth that the Supreme Court has been divided 5 to 4 on Roe v. Wade, issued by the Annenberg Center's FactCheck.org, is posted here: http://www.factcheck.org/article176.html 

On September 14, 2005, the Los Angeles Times published an eye-opening examination, written by its veteran Supreme Court reporter, on the true scope of the "right to abortion" created by the Supreme Court in Roe v. Wade and more recent rulings, which are still often badly misunderstood.  (It is here.)  The article also summarizes documents that reveal the internal processes at the Supreme Court that produced Roe v. Wade in 1973.

The National Right to Life Committee maintains the most comprehensive collection of documentation on partial-birth abortion available anywhere on the Internet, here.

A good primer on what the Partial-Birth Abortion Ban Act does and does not do, and on other disputed issues pertaining to partial-birth abortion, is found in the memo "The Partial-Birth Abortion Ban Act: Misconceptions and Realities," which is posted here.

A collection of key documents pertinent to medical issues surrounding partial-birth abortion are posted here.

National Right to Life is the nation's largest pro-life organization, with 50 state affiliates. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.