JUSTICE STEVENS STAYS ENFORCEMENT
OF PARTIAL-BIRTH ABORTION LAWS
By Dave Andrusko
Enforcement of state laws banning partial-birth abortion in Wisconsin and Illinois was put on hold November 30 when Supreme Court Justice John Paul Stevens issued a stay at the request of lawyers for Planned Parenthood and several abortionists.
Stevens's terse one-page order came a little over a month after the 7th U.S. Circuit Court of Appeals upheld both statutes. Writing for the majority in a 5-4 decision, Judge Frank Easterbrook stated, "We conclude that both laws can be enforced in a constitutional manner." (See NRL News, 11/99, p. 1.)
The plaintiffs turned to Stevens after the 7th Circuit refused their request for a stay. Stevens handles all emergency motions from the 7th Circuit, which includes Illinois and Wisconsin.
NRLC State Legislative Director Mary Spaulding Balch told NRL News that Stevens's action was not unexpected, both because "it gives the plaintiffs time to prepare their appeal" and because " Justice Stevens is pro-abortion."
NRLC Federal Legislative Director Douglas Johnson commented, "It is regrettable that Justice Stevens has unilaterally blocked enforcement of bans on partial-birth abortions that were democratically enacted by the legislature of two states and upheld as constitutional by a full federal court of appeals."
Had Stevens not intervened, both laws would have gone into effect within days. The practical effect of Stevens's action is that the stay will automatically end - - and the laws go into effect - - if the Supreme Court decides not to hear the appeal. However, should the High Court take up the case, the stay will remain in effect until the justices render a decision.
Two federal courts of appeal have now reached opposing conclusions on the constitutionality of bans on partial-birth abortions.
On October 26, the full 7th U.S. Circuit rejected the argument that the Illinois and Wisconsin laws were unconstitutionally vague or violate a woman's "right to privacy."
However, on September 24, a three-judge panel of the 8th U.S. Circuit Court of Appeals held that Nebraska's law banning partial- birth abortions placed an "undue burden" on a woman seeking an abortion, and therefore was unconstitutional. Circuit Judge Richard S. Arnold concluded that the law "would prohibit in many circumstances the most common method of second trimester abortions."
On the same day the panel, in separate decisions, also held that Arkansas's and Iowa's partial-birth abortion bans were unconstitutional on the same grounds.
The Nebraska Attorney General already has asked the Supreme Court to review the 8th Circuit's ruling. Although the High Court is not obliged to intervene, it customarily does to resolve conflicts between federal appeals courts.
In a partial-birth abortion, an unborn baby is rotated about in her mother's womb and pulled into the birth canal - - that is, the child's feet come out first in a manner that resembles a breech birth.
The abortionist then plunges a pair of surgical scissors into the back of the baby's exposed head. A suction tube is inserted in the resulting hole and the baby's brains are vacuumed out. The body of the dead baby is delivered largely intact.
Partial-birth abortion litigation continues to pick up speed. Such laws have been enacted in 27 states.
Balch said there is more reason than ever to think the Supreme Court will take up the question.
"You have two circuits courts reaching opposing decisions on an issue of national import that is currently being litigated in five other federal circuit courts and a number of district courts," she said. "Given the intense controversy, it would be difficult for the High Court to stay out."
Justice Halts Enforcement of States' Late-Term Abortion Bans
Editor's note.The following excerpt is from the December 1 Washington Post.
It is difficult to predict what the justices will do with a given appeal, and most are rejected without explanation. But because lower courts are split on the constitutionality of partial-birth abortion laws, there is a good chance the justices will take up the issue. If they agree to hear the case, it will be the first time the justices will address a woman's right to end a pregnancy since 1992, when they narrowly upheld Roe v. Wade, the 1973 decision that made abortion legal nationwide.
The state of Nebraska has already appealed the 8th Circuit ruling to the high court. Appeals in the Wisconsin and Illinois cases are due in January. The court will likely decide this spring whether to take the appeals. Oral arguments would be scheduled for later in the year, with a probable ruling in 2001.