U.S. Supreme Court Agrees to Review Federal Partial-Birth Abortion Ban Act

WASHINGTON (February 21, 2006) -- Six years after its much-criticized ruling that Roe v. Wade fully protects the brutal practice of partial-birth abortion, the U.S. Supreme Court today agreed to take another look at the issue.

The justices announced that they would review a lower-court ruling that has blocked enforcement of the Partial-Birth Abortion Ban Act, a bill signed into law by President George W. Bush on November 5, 2003. The Bush Administration had urged the Court to accept the appeal, most recently in a brief filed by the Solicitor General on February 14.

The Court will hear arguments and decide the case during its next term, which begins in October.

Commenting on today's Court announcement, Douglas Johnson, legislative director for the National Right to Life Committee (NRLC), said, "Unless the Supreme Court now reverses the extreme position that five justices took in 2000, partly born premature infants will continue to die by having their skulls punctured by seven-inch scissors."

In 2000, five justices of the Supreme Court, including recently retired 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.

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 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. However, it does not allow an abortionist to use the method any time he asserts that it might be slightly preferable to some other method, even for women with no health problems, which is what the five justices required in the 2000 ruling.

Three different federal courts of appeals have ruled that the federal law conflicts with the 2000 Supreme Court decision, and they have blocked enforcement of the law. The Supreme Court today agreed to review the first of those appeals court rulings, a July 2005 ruling by the U.S. Court of Appeals for the Eighth Circuit (Gonzales v. Carhart).

On January 31, 2006, the U.S. Court of Appeals for the Ninth and Second Circuits also ruled that the federal law conflicts with the 2000 Supreme Court ruling. However, in the Second Circuit case (National Abortion Federation v. Gonzales), one of the two judges who voted against the law also criticized the Supreme Court's previous ruling, and another judge filed a strong dissent.


Among currently sitting Supreme Court justices, five 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. They are justices Breyer, Ginsburg, Souter, Stevens, and Kennedy.

Two justices (Antonin Scalia and Clarence Thomas) have voted to overturn Roe, and two (John Roberts and Samuel Alito) have not voted on the matter.

Justice Kennedy, although a supporter of Roe, voted in the 2000 Stenberg case to allow Nebraska to ban the partial-birth abortion method.

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.


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