WASHINGTON – In two cases to be heard Wednesday,the Supreme Court will consider whether the federal Partial Birth Abortion Ban Act of 2003 is constitutional without a health exception for the mother.
The cases are Gonzales v. Carhart and Gonzales v. Planned Parenthood.
Attorney General Alberto Gonzales argues in court papers that the law should be upheld because it carries an exception that could preserve the life of a mother. He argues that an exception for a woman's health is not necessary.
Gonzales also argues “'partial birth abortion' is never medically indicated to preserve the health of the mother.”
One case involves Dr. Leroy Carhart,a Nebraska physician who successfully challenged that state's partial-birth abortion ban in 2000,and three other doctors.
They are represented by the Center for Reproductive Rights,which argues that the law will endanger women's lives.
In the second case,the Planned Parenthood Federation of America,the Golden Gate chapter and the city and county of San Francisco sued to have the law declared unconstitutional.
Carhart also argues in court papers that the law is void because it would allow physicians who provide “second-trimester” abortions to be prosecuted.
The two sides also disagree on what to call the procedure,with opponents using the term “partial-birth abortion” and supporters referring to “second-term” or “second-trimester” abortion or “dilation and extraction.”
There are 17 friend of the court briefs,or arguments,filed by organizations not directly involved in the case.
The National Legal Foundation,the Nurse and Association of Pro-Life Physicians and the Christian Legal Society filed briefs supporting the law,arguing that women's health can be preserved without partial-birth abortions.
The National Women's Law Center,the Religious Coalition for Reproductive Choice and the American College of Obstetricians and Gynecologists filed briefs opposing the law. They argue that outlawing second-term abortions would hurt women's health because the ban would scare doctors away from assisting women who are having miscarriages.
At a debate on the cases – sponsored in part by the nonpartisan Pew Forum – one week before the court arguments,three lawyers and a minister argued about previous Supreme Court abortion rulings.
Pro-life lawyers said Congress hurt its case by waiting until 2003 to pass a partial-birth abortion ban,allowing people to become used to the idea that the procedure was available.
Benjamin Bull,a lawyer for the pro-life Alliance Defense Fund,said the court was wrong when it overturned the 2000 Nebraska law banning partial-birth abortions.
Bull said Justice Anthony Kennedy,appointed by President Reagan in 1988,is the likely swing the vote,a role that previously fell to former Justice Sandra Day O'Connor.
Kennedy voted to uphold in the Nebraska partial-birth abortion ban.
Bull predicted that Justices Antonin Scalia,Samuel Alito,Clarence Thomas and Chief Justice John Roberts would join Kennedy to support the partial-birth abortion ban.
He said he thinks that,while the courts found that language of the Nebraska bill was too vague and didn't give necessary exemptions for women's health risks,the federal law will be upheld,because partial-birth abortions are never necessary to protect the health of a mother.
Lawyer Nancy Northrup,who is part of the nonprofit organization representing Carhart,said she couldn't understand why the court is hearing virtually the same case twice.
“We really have been down this road before,and we really shouldn't be going down this road again,” she said. “If the Supreme Court reads its case law,it should be an easily decided case.”
Northrup refused to guess which way the court would vote,but she said the law shouldn't be upheld because it lacks language to protect women's health.
Lawyer Helen Alvaré,associate law professor at the Catholic University of America and a pro-life lobbyist,said she'd give a 55 percent chance that the law will be upheld.
“The AMA [American Medical Association] called it,‘not a medical procedure,'” Alvaré said. She explained the procedure in graphic detail and said there is no difference between partial-birth abortions and homicide.
For these reasons,she said the law's language is sufficient to protect women.
The Rev. Katherine Hancock Ragsdale,a pro-choice Episcopal minister and former chief of the national board of the Religious Coalition for Reproductive Choice,shook her head.
“Not being a lawyer,I'm still able to read,” Ragsdale said. “We have no business telling doctors how to practice medicine.”
She said if Congress wants the law to be upheld,it needs to follow previous court rulings that require a health exemption for women – not just an exemption to help preserve their lives.
The court is expected to decide the cases sometime next year.