The Bush administration has asked the Supreme Court to reinstate a federal ban on partial birth abortions according to a brief filed by the solicitor general's office on Friday. Pro-lifers will watch the case even more closely than normal as it will serve as the first significant test of the extent to which John G. Roberts' decisions are determined by previous Court decisions and how willing he is to overturn precedent.
Administration lawyers are asking the Supreme Court to overturn the ruling of the 8th Circuit Court of Appeals which stated that a 2003 federal ban on partial birth abortion was unconstitutional because it did not provide an adequate exception for the health of the mother. The 8th Circuit was one of three circuits to declare the law unconstitutional. In 2000, the Supreme Court ruled on the question of partial birth abortion at the state level when it struck down a law banning the procedure in Nebraska and 29 other states. The case, Stenberg v. Carhart, ruled that the ban presented an undue burden on the women's right to an abortion and did not contain an exception for the health of the mother as defined in the case Doe v. Bolton. Doe's definition of health is seen by many to be too broad because it lists, “emotional, psychological, familial, and the woman's age” as factors that have to be taken into account.
Clarke Forsythe, a lawyer who serves as director of the Project in Law and Bioethics for Americans United For Life, said he expects those arguing for reinstating the federal ban to try to persuade the Court that the case is substantially different from Stenberg v. Carhart rather than try to get them to overturn the previous decision, a move justices are reluctant to make. But such an approach may prove challenging. “The lawyers will look for ways to distinguish this law and the law struck down in Stenberg v. Carhart. But it may not be possible to uphold the federal law and continue to uphold Stenberg. So the federal partial birth abortion may inevitably challenge Stenberg and it could have profound implications for future of Roe and the Court's adherence to precedent and will present an interesting first case for Chief Justice Roberts.”
Forsythe said the timing of the case, which could be heard as early as April, is also important. Justice Sandra Day O'Connor, who has submitted her resignation but will was remain on the Court until her replacement is confirmed, was the deciding vote in Stenberg. If she is still on the Court when the case is tried, she would likely be the deciding vote against the ban again. “We don't want Justice O'Connor on the court when this case it tried,” he said.
Bill Saunders of Family Research Council said that the case may present the Supreme Court an opportunity to correct a significant mistake it made in Stenberg. “Congress made extensive findings of fact and they passed a national law. Those findings are due deference and they made it clear that a health exception was not necessary with partial birth abortion. If Stenberg meant that you have to have a health exception no matter what, all the time, that is legally absurd and extreme. It's clearly unreasonable and the Supreme Court should rethink it. It also shows how radical the pro-abortion regime is in America and how much the legal system has been distorted to accommodate it,” he said.
If the case is heard — as is widely expected — it will bring to four the total number of cases related to life issues the high court is set to hear in the next session. A case challenging Oregon's assisted suicide law is set to go before the Court in October. On November 30 the Court will hear a challenge to New Hampshire's parental notification law. On the same day pro-life activist Joseph Scheidler will go to the Supreme Court to defend himself for the third time against charges related to anti-racketeering laws. Forsythe said the number “is unprecedented for pro-life related cases. In 25 years I can't remember anything like this.”