Supreme Court sets November 8 for partial-birth abortion oral arguments

WASHINGTON (BP)--The Supreme Court will hear oral arguments Nov. 8 on the constitutionality of a federal ban on the grisly procedure known as partial-birth abortion.

The high court announced Aug. 14 it would hear arguments in two cases involving the Partial-birth Abortion Ban Act the day after the general election. The justices will consider in back-to-back proceedings Gonzales v. Carhart, an appeal from the Eighth Circuit Court of Appeals, and Gonzales v. Planned Parenthood, out of the Ninth Circuit.

The Supreme Court, which will open its next term Oct. 2, is expected to issue an opinion in the cases before it adjourns next summer.

The 2003 law bars a procedure typically used in the fifth or sixth month of pregnancy. In the method, an intact baby is delivered normally feet first until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors before inserting a catheter into the opening and suctioning out the brain, killing the baby. The technique provides for easier removal of the baby’s head. One nurse who witnessed the procedure testified in court several years ago she saw the baby's hands "clasping and unclasping" and its feet "kicking" before it was killed.

Three different appeals courts at the federal level have ruled the prohibition is unconstitutional. The Eighth Circuit invalidated the law based on its lack of an exception for the health of the mother, while the Ninth Circuit said the ban imposes an undue burden on women and is too vague.

The Southern Baptist Ethics & Religious Liberty Commission signed on to a friend-of-the-court brief filed in May in the Eighth Circuit case in support of the law. The U.S. Conference of Catholic Bishops submitted the brief.

The SBC approved resolutions condemning the partial-birth procedure in both 1996 and 2002.

Pro-life advocates hold out hope that the January confirmation of Samuel Alito as an associate justice means the Supreme Court will reverse the lower court decisions. Alito replaced retired Associate Justice Sandra Day O’Connor, who voted with a 5-4 majority that struck down a state ban on partial-birth abortion six years ago.

After President Bush signed the bill into law in November 2003, abortion rights organizations quickly challenged it in three courts and blocked its enforcement. Federal judges in New York City, San Francisco and Lincoln, Neb., struck down the law. Three-judge panels in the Ninth Circuit, based in San Francisco, the Eighth Circuit, based in St. Louis, and Second Circuit, based in New York, upheld the lower court decisions.

The judiciary’s requirement of an exception for a mother’s health has frustrated attempts to enact a meaningful prohibition of the partial-birth procedure. Until now, the dilemma that advocates of the ban have been unable to solve is this: If they pass a partial-birth abortion ban without a health exception, the courts strike it down; if they approve a ban with a health exception, it is ineffective because of the judiciary’s definition of “health.”

In its 1973 Doe v. Bolton opinion, which accompanied the Roe decision, the Supreme Court defined maternal health so expansively it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.

Congress approved the Partial-birth Abortion Ban Act by wide margins in 2003, with the Senate voting 64-34 for the bill and the House of Representatives passing it in a 281-142 vote. Congress had twice adopted partial-birth abortion bans in the 1990s only to have President Clinton veto them. In both 1996 and 1998, the House achieved the two-thirds majorities necessary to override vetoes, but the Senate fell short.

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