As the newly configured Roberts court takes up the constitutionality of the federal Partial Birth Abortion Ban Act, Catholic hope once again is raised that the U.S. Supreme Court "justices" will accomplish justice.

We have been here before. When I served President Ronald Reagan as his legal counsel, we asked the court five times to overturn "Roe v. Wade" in order to return the issue to the states. The court refused, but said in reaffirming "Roe" in 1992 that the states would retain a "critical and legitimate" role in protecting life from the moment of conception.

In 2000, the state of Nebraska attempted to do just that by banning what all concede to be the most cruel of abortion procedures --- beginning delivery in order to pierce the infant's skull for the purpose of draining out all chance of life. Again the court dug in its judicial heels. Now it claimed Nebraska's law was vague, might impede other abortion practices and lacked a health exception.

There was nothing vague about Nebraska's law. And it is just plain Orwellian to hold that a "health" exception is needed for something that overwhelming medical evidence indicates is never necessary to save a woman's life and that, itself, presents significant health risks.

Well, Congress is nothing if not resilient. The national legislature tightened up the definition of the banned procedure. A doctor must "deliberately and intentionally" set out to do the "overt act" that he "knows will kill the partially delivered living" child. No doctor can go to jail for accidental behavior or for undertaking other abortion procedures.

And on the issue of a health exception, Congress heard extensive medical testimony in four Congresses, finding the following: "The procedure [itself] poses serious risks to the health of a woman undergoing" it; "there is no credible evidence" that it is "safe or safer" than other procedures; and even the doctor who developed it concedes it "never to be medically necessary."

Of course, Planned Parenthood has doctors who say the opposite.

But total medical consensus is not the legal standard. If it were, the objection of even a single doctor could defeat any state regulation.

The standard created by the court is whether the ban creates "a significant health risk creating a substantial obstacle for women seeking abortion in a large fraction" of cases. No one has produced evidence of that. And even if one wants to credit the pro-abortion claims of risk, these hypotheticals pale against the vital interest of banning a practice bordering on infanticide.

Surely the judicially invented abortion right does not mean Congress is entitled to no deference. Laws, after all, are supposed to be products of legislative deliberation.

There is an even more basic point. When "Roe" was argued in the 1970s, one of the most liberal members of the bench, Thurgood Marshall, made clear that actions taken during the childbirth process could not be shielded by abortion. By definition, Marshall meant, an abortion "terminates a pregnancy," and every common medical dictionary reveals that pregnancy ends with "the onset of the birth process."

What then is the killing of a child in the birth process --- a practice Texas law labeled "parturition"?

Here is the transcript from "Roe." Let it speak for itself:

Justice Marshall: What does that [parturition] statute mean?

Texas lawyer: Sir?

Justice Marshall: What does it mean?

Justice Stewart: That it is an offense to kill a child in the process of childbirth?

Texas lawyer: Yes sir. It would be immediately before childbirth or right in the proximity of the child being born.

Justice Marshall: Which is not an abortion.

Texas Lawyer: Which is not --- would not be an abortion, yes, sir. You're correct, sir. It would be homicide.

What was a homicide Oct 11, 1972, when "Roe" was argued is a homicide in 2006. Let us pray the new court is honest enough to say so.

Douglas Kmiec is professor of Constitutional Law and Caruso Family Chair in Constitutional Law at Pepperdine University's School of Law in Malibu.