WASHINGTON — Now that the highest court in the land has reconvened, all eyes in the pro-life movement are fixed on Justice Anthony Kennedy.

The U.S. Supreme Court is scheduled to hear oral arguments on the constitutionality of partial-birth abortion on Nov. 8, and Justice Kennedy is considered the swing vote on whether the court will uphold a federal statute banning the procedure.

Partial-birth abortion is certainly the most contentious issue on the justices’ docket for their fall session, which opened Oct. 2. Most court-watchers agree that the two newest members of the Supreme Court — Chief Justice John Roberts and Justice Samuel Alito — will likely vote with Kennedy, Clarence Thomas and Antonin Scalia to overturn lower court rulings which ruled the Partial-Birth Abortion Ban Act of 2003 unenforceable.

Richard Myers, a professor of constitu­tional law at Ave Maria School of Law in Ann Arbor, Mich., said that even though the court will likely issue a narrow ruling upholding the ban, it has the opportunity to go further.

“Any time an abortion case gets before the Supreme Court, they could decide, for example, that Roe v. Wade and Planned Parenthood v. Casey were wrongly decided,” he said. “But I don’t think anybody expects that Kennedy would go along with that.”

After the gruesome procedure came to the public’s attention in the 1990s, Congress twice passed legislation banning it. President Bill Clinton vetoed the statutes both times.

Today at least 27 states have laws on the books banning the proce­dure. None are enforced because in 2000 the Supreme Court ruled a Nebraska law banning it unconstitutional. The high court split 5-4 in striking down the law because it lacked an exception to protect the mother’s health and its definition of the procedure was vague.

The federal statute has an excep­tion for the life of the mother, but not for her health. It was crafted using a congressional finding that partial-birth abortion is never medically necessary to protect a woman’s health. It went farther than state laws in defining the procedure.

Life-Saving Law

The Justice Department under President Bush has fought to rein­state the federal ban on partial-birth abortion, passed in 2003 but never put in effect, because it was struck down by judges in California, Nebraska and New York. The law makes it a crime for a doctor to perform an abor­tion during which a part of the unborn child, either the “entire fetal head” or “any part of the fetal trunk past the navel,” is outside the woman’s uterus at the time the baby is killed.

Douglas Johnson, legislative director of the National Right to Life Committee, said the federal ban is solid.

“Congress did everything but put a medical drawing into the law,” he said. “The other issue that the five justices had with the Nebraska law is they thought an abortion doctor ought to do it any time they thought this would benefit a woman’s health.

“This is usually what the media calls a ‘health exception,’” he explained. “Most people think there has to be an exception if the woman is really sick, and this is the only thing you can do to save her. Regrettably, as Justice Thomas pointed out in his dissent, the abortionist can do it any time he thinks it’s the healthiest way to do an abortion in the fifth or sixth month.”

The vast majority of partial-birth abortions are done on healthy mothers and healthy babies, he said.

Pro-life groups, however, have mixed feelings about the ban and its legal application. If the ban was upheld and the law enforced, abor­tionists would simply use other tech­niques. In effect, the law wouldn’t save a single child’s life, some experts believe. Others, however, point out that the law is a tremendous educa­tor.

“This legislation has already saved lives,” Johnson said. “The debate over this legislation has saved lives. It’s had tremendous educational value. Polling data shows that young people are collectively more pro-life than the people in their 40s and 50s. This has to do with the fact that the first thing they ever heard about abortion was the debate about something called partial birth abortion.”

Johnson points to a 2003 New York Times article entitled “Surprise, Mom: I’m Anti-Abortion.”

The article notes that a study of American college freshmen shows that support for abortion rights has been dropping since the early 1990s. About 54% of college freshmen polled in 2002 said abortion should be legal. That’s down from 67% a decade earlier.

Post-Card Campaign

The U.S. bishops are also working to educate the public on the facts behind partial-birth abortion. The bishops’ pro-life office will send a series of 27 electronic post cards to the media and congressional offices with the facts behind partial-birth abortion — one card each day leading up to the Nov. 8 oral arguments on the case.

“Not only is partial-birth abortion one of the most horrendous excesses of the Supreme Court’s abortion jurisprudence,” said Richard Doerflinger, deputy director of the bishops’ Secretariat for Pro-Life Activities. “It’s also an issue that has not been before congress and, to an extent, not been before the public for some years now,” 

Patrick Novecosky

is based in Naples, Florida.