Eighth Circuit ruling underscores that O'Connor successor will determine whether partial-birth abortion remains legal

WASHINGTON (July 8, 2005) -- What follows is a comment from the National Right to Life Committee (NRLC) in Washington, D.C., regarding the future of the federal Partial-Birth Abortion Ban Act in light of today's ruling by the U.S. Court of Appeals for the Eighth Circuit that the congressional ban on partial-birth abortion is in conflict with a 5 to 4 ruling of the U.S. Supreme Court.

NRLC Legislative Director Douglas Johnson said: "Five years ago, five justices of the Supreme Court, including Justice O'Connor, ruled that 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, 2000) Today's appeals court ruling was based entirely on the prior 5-4 Supreme Court decision, and it underscores the fact that the successor to Justice O'Connor will cast the deciding vote on whether the brutal partial-birth abortion method remains legal."

The Eighth Circuit ruling was in the case called Carhart v. Gonzales.

President Bush signed the Partial-Birth Abortion Ban Act on November 5, 2003, saying that in partial-birth abortion "a terrible form of violence has been directed against children who are inches from birth."

In a ruling issued in New York on August 26, 2004, U.S. District Judge Richard C. Casey said, "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 5-4 Supreme Court decision in Stenberg. Casey's ruling is currently being reviewed by the U.S. Court of Appeals for the Second Circuit, while a third challenge to the law is before the U.S. Court of Appeals for the Ninth Circuit. Both the Second and Ninth Circuits are likely to hand down their rulings during the months just ahead, making the issue ripe for possible review by the U.S. Supreme Court during the 2005-2006 term.

[The Supreme Court is currently split 6 to 3 in favor of Roe v. Wade, requiring states to allow legal abortion for any reason up to "viability," and for "health" reasons (broadly defined) even during the final months of pregnancy. However, Justice Anthony Kennedy, a supporter of Roe, voted to uphold Nebraska's ban on the partial-birth abortion method. The Annenberg Center's FactCheck.org refuted the myth that the current Supreme Court is split 5 to 4 on Roe v. Wade, here.]

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

For 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, see the memo "Partial-Birth Abortion: Misconceptions and Realities," 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 and approximately 3,000 local affiliates nationwide. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.