A Nov. 2 panel discussion on the Supreme Court review of the federal law banning what is known as partial-birth abortion carried a title that sums up many observers' expectations for how it will shape up: "Judicial Showdown."
The court's decision in what is actually two cases dealing with the law likely won't be announced for several months, during which the Nov. 8 oral arguments in Gonzales v. Carhart and Gonzales v. Planned Parenthood will be parsed and dissected for clues to the outcome.
At the top of the list of questions: To which side will the presumed "swing" vote of Justice Anthony Kennedy sway?
Also considered possible keys to the outcome:
---How much weight will the court give to its own legal precedent when considering a law that closely mirrors a state statute it overturned just six years ago?
---Will the court's two newest members, Chief Justice John Roberts and Justice Samuel Alito, vote, as many expect, with Justices Antonin Scalia and Clarence Thomas to uphold the federal law? Based upon their judicial records and their appointment by President George W. Bush, many people assume Roberts and Alito will join Scalia and Thomas, who were in the 5-4 minority of the court in 2000 that would have upheld Nebraska's partial-birth abortion ban.
The four, along with Kennedy, also constitute a historic five-justice majority of Catholics on the high court bench. The U.S. Catholic Church has been a leading supporter of efforts to make partial-birth abortion illegal, holding that abortion in general is immoral, and arguing that this particular procedure borders on infanticide. In it, a live fetus is partially delivered and, before the body is fully outside the mother, an incision is made at the base of the skull, through which the brains are removed, before the dead body is delivered the rest of the way.
Those who would keep the procedure --- which they say is properly called "intact D&E," for dilation and extraction --- say it is safer than the usual alternative, in which the fetus is killed and dismembered for easier removal while still inside the mother.
Carhart and Planned Parenthood are the first major abortion-related cases since Alito and Roberts joined the court last term.
The cases challenge the federal Partial Birth Abortion Ban Act of 2003. The 8th and 9th U.S. Circuit Courts of Appeals, respectively, ruled the law unconstitutional because it does not include a provision allowing the procedure in cases when the pregnant woman's health would be more at risk with other types of abortions. The 9th Circuit also said the law is vaguely written, which might lead to its use in banning other types of abortion.
The "smart money" is on Alito and Roberts voting to uphold the federal law, said Benjamin Bull, chief counsel to the Alliance Defense Fund, at the panel discussion on the cases hosted by the Pew Forum on Religion and Public Life, the American Constitution Society for Law and Policy, and the Federalist Society. The Alliance Defense Fund supports the partial-birth abortion ban.
Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter "have already staked out" their positions in deciding the Nebraska law was illegal, Bull said, suggesting Kennedy will be the deciding factor.
Along with the late Chief Justice William Rehnquist, Kennedy voted with the minority in the 2000 Nebraska case, writing an opinion that said states have a legitimate interest in deciding some types of abortion are less morally acceptable than others.
Since Justice Sandra Day O'Connor retired early in 2006, Kennedy has been assumed to be her successor as the justice most likely to shift 5-4 decisions of the court one way or another, with Scalia, Thomas, Alito and Roberts presumed to be on one side and Stevens, Ginsburg, Breyer and Souter on the other.
Nancy Northup, president of the Center for Reproductive Rights, which opposes the federal law, said she thinks the key predictor of how Carhart and Planned Parenthood are decided will be whether Roberts, especially, considers the 2000 ruling in the Nebraska case to be "settled law." The federal law "has the same flaws" as the Nebraska statute, she said, and in fact "medical evidence is stronger now" that sometimes the procedure addressed in the law is medically safer for some women.
Helen Alvare, a Catholic University of America law professor and former director of planning and information for the U.S. Conference of Catholic Bishops' Secretariat for Pro-Life Activities, said Northup's argument that partial-birth abortion is in some degree safer for the mother than other types of abortion is part of a long series of defenses of the procedure that have proved to be inaccurate.
Congress did not include an exception to the ban for cases when a woman's health is at risk precisely because "health" exceptions have been broadly interpreted to include almost any circumstances, Alvare explained.
Members of Congress heard plenty of evidence from all sides before passing the law, Bull said, and "concluded the procedure was not needed and, in fact, may be harmful to women. To include a health exception was unnecessary" if the procedure is never necessary, they found, Bull said. ---CNS |