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
“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
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.
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
“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.
“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,”
is based in