HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, February 21, 2006

Supreme Court to Hear Partial Birth Abortion Case

SCOTUSBLOG reports that the Supreme Court has agreed to hear the case, Gonzales v. Carhart, 05-380, invovling a challenge to the federal Partial-Birth Abortion Ban Act of 2003.  The statute criminalizes a doctor's performance of an abortion during which either the "'entire fetal head" or "any part of the fetal trunk past the navel" is outside the woman's uterus at the time the fetus is killed.'"

The New York Times' Linda Greenhouse provides more background on the case and reports on the changes to Court with the arrival of Justices Alito and Roberts.  She states,

"While supporters of the law maintain that this technique is used only late in pregnancy, and that the law therefore does not present an obstacle to most abortions, abortion-rights advocates say the statute's description applies to procedures used to terminate pregnancies as early as 12 or 13 weeks.

The law makes an exception for instances in which the banned technique is necessary to save a pregnant woman's life, but not for preservation of her health. Six years ago, in a 5-to-4 decision with Justice Sandra Day O'Connor in the majority, the Supreme Court found that the health exception was necessary when it overturned a similar law from Nebraska. In essence, the court will be revisiting that decision in the case it took Tuesday, with Justice Alito now filling the O'Connor seat.

In omitting a health exception, the federal law presents a direct threat to that precedent. In the federal statute, Congress included a "finding" that "partial-birth abortion is never medically indicated to preserve the health of the mother" and that "there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures."

The four doctors who went to Federal District Court in Lincoln, Neb., to challenge the federal law, including Dr. Leroy Carhart, who had brought the earlier challenge to the Nebraska state law, disputed the Congressional findings. They said the method was safer under some conditions, and could preserve some women's fertility by avoiding such complications as punctures from bone fragments inside the uterus."


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