Bush Administration Asks Supreme Court to Reinstate Partial-Birth Abortion Ban Act

By Dave Andrusko

Solicitor General Paul Clements, acting on behalf of the Bush Administration, has called upon the Supreme Court to reinstate the 2003 Partial-Birth Abortion Ban Act.

In an appeal filed September 23, Clements offered well-reasoned arguments to explain why the U.S. 8th Circuit Court of Appeals' decision last July should be overturned. In essence he argued that the appeals court misunderstood what the Supreme Court had held in its 2000 Stenberg v. Carhart decision overturning Nebraska's ban on partial-birth abortions and, in addition, that the 2003 law (unlike the Nebraska law) contained congressional findings of fact to which the Supreme Court historically pays deference.

Most legal observers believe that the law will rise or fall on the votes of two justices who were not on the court when the 2000 case was decided. On September 29, John Roberts was confirmed to succeed deceased Chief Justice William Rehnquist, who had voted to uphold the Nebraska ban. On October 3, President Bush announced that he would nominate Harriet Miers to replace retiring Justice Sandra Day O'Connor, who voted to strike down the Nebraska ban. (See story on page one.)

Carhart's 5–4 decision was so brutal even pro-Roe Justice Anthony Kennedy demurred. The majority ruled that the "right" to abortion under Roe is so sweeping it means an abortionist may perform a partial-birth abortion any time he sees a 'health' benefit, even if the woman and her unborn baby are entirely healthy.

President Bush signed the Partial-Birth Abortion Ban Act on November 5, 2003. His words of simple eloquence captured what was and is at stake.

"In passing this legislation, members of the House and Senate made a studied decision based upon compelling evidence," the President said. "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."

The law bans "an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child's body until either the entire baby's head is outside the body of the mother, or any part of the baby's trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered infant."

Federal judges in New York and San Francisco have also declared the law unconstitutional. Those decisions are also being appealed. In general the courts have overturned the ban on the grounds that it lacks a "health" exception.

Noteworthy is that even though he invalidated the Partial-Birth Abortion Ban Act as being in conflict with Carhart, U.S. District Judge Richard C. Casey minced no words. He wrote, "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."

It requires the votes of four justices to hear a case. That vote will not occur for months. If the justices agree to hear the appeal (known as Gonzales v. Carhart), likely the earliest they would hear oral arguments is next spring. The High Court has already agreed to hear a challenge to New Hampshire's parental notification law in November.