WASHINGTON - The Supreme Court said Tuesday it will consider the constitutionality of banning a type of late-term abortion, teeing up a contentious issue for a new-look court already in a state of flux over privacy rights.
The Bush administration has pressed the high court to reinstate the federal law, passed in 2003 but never put in effect because it was struck down by judges in California, Nebraska and New York.
The outcome will likely rest with the two men that President Bush has recently installed on the court. Justices had been split 5-4 in 2000 in striking down a state law, barring what critics call partial birth abortion because it lacked an exception to protect the health of the mother.
But Justice Sandra Day O'Connor, who was the tie-breaking vote, retired late last month and was replaced by Samuel Alito. Abortion had been a major focus in the fight over Alito's nomination because justices serve for life and he will surely help shape the court on abortion and other issues for the next generation.
Alito, in his rulings on the 3rd U.S. Circuit Court of Appeals in Philadelphia, has been more willing than O'Connor, the first woman justice, to allow restrictions on abortions, which were legalized in the Roe v. Wade decision in 1973.
The federal Partial-Birth Abortion Ban Act prohibits a certain type of abortion, generally carried out in the second or third trimester, in which a fetus is partially removed from the womb, and the skull is punctured or crushed.
Justices on a 9-0 vote in a New Hampshire case reaffirmed in January that states can require parental involvement in abortion decisions and that state restrictions must have an exception to protect the mother's health.
The federal law in the current case has no health exception, but defenders maintain that the procedure is never medically necessary to protect a woman's health.
Even with O'Connor's retirement, there are five votes to uphold Roe, the landmark ruling that established a woman's right to an abortion.
Alito's views "are not going to change the outcome of the central principle of Roe v. Wade," said John Garvey, the dean at Boston College Law School. "In some ways, these are tokens or markers in ... a symbolic tug of war."
Bush has called the so-called partial birth abortion an "abhorrent practice," and his Supreme Court lawyer, Solicitor General Paul Clement, had urged justices not to delay taking up the administration's appeal.
The case that will be heard this fall comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians. Doctors who perform the procedure contend that it is the safest method of abortion when the mother's health is threatened by heart disease, high blood pressure or cancer.
A judge in Lincoln, Neb., ruled the law was unconstitutional, and the 8th U.S. Circuit Court of Appeals in St. Louis agreed last summer, prompting the Supreme Court appeal. Federal judges in New York and San Francisco also declared the law unconstitutional and appeals courts agreed.
"Every court considering this ban has found that it lacks the necessary protections for women's health," said Vicki Saporta, president of the National Abortion Federation.
Fifteen states urged justices to review the case: Alabama, Arkansas, Colorado, Florida, Idaho, Kansas, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Virginia.
There is really not much to say about this story. The court will probably uphold such a ban--even though the ban does not provide a provision to allow such an abortion in case of the mother's life or health is at risk. This is what happens when you place two hard-lined conservatives on the highest court in the land--you are going to see Roe being chipped away with restriction after restriction. Now I'm not so sure I'd care much for this type of abortion rather late in the pregnancy. But what angers me is how the right-wingnuts want to restrict any right of abortion for any reason--including the life and health of the mother. It is as if the fetus has greater legal rights than that of the mother, within the wing-nuts convoluted view.
What is even more amazing is how simple this issue can be resolved. Uphold the ban with the exception of the mother's health or life is at risk. It is that simple. Keep it as an option if there are medical complications that endanger the mother. The problem is that the wing-nuts refuse to accept any compromise. To them, abortion is murder and any abortion--regardless of whether it can save the mother's life--is considered illegal in their views. Abortion becomes a religious issue to them, and there is no compromise within their religious beliefs. And so, the wing-nuts will continue to legally fight and chip away at abortion--pushing to get more hard-lined ideologies on the judicial bench, until the Supreme Court finally overturns Roe. That is the holy grail for the religious wing-nuts.
And they are closing fast on their grail.
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