HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Friday, February 3, 2006

It's Unanimous: Federal Partial Birth Abortion Ban is Unconstitutional

Every federal court that's looked at the federal partial-birth abortion ban (Pub. L. No. 108-108, 117 Stat. 1201) has concluded that its failure to include an exception to protect the health of the woman means it is unconstitutional.  The Second and Ninth Circuits handed down their decisions on Jan. 31, joining the 8th Circuit, which came to the same conclusion last July.  That's three district court defeats and three court of appeals defeats and no wins for DOJ on this one.  There's a cert. petition in the 8th Circuit case that is pending with SCOTUS right now (No. 05-380).  Without a split in the circuits, the Court could still grant review based upon the importance of the subject matter (Rule 10(c)).  Assuming Scalia, Thomas, and now Alito would be interested in getting to this issue, the question is whether there is a fourth justice willing to vote to grant cert.  It's come up in the Jan. 6 and Jan. 20th conferences and returned to the pile for another day.  Is that day now? Stay tuned . . . .  [tm]

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