High Court Takes Up Partial-Birth Abortion Case

The Supreme Court votes to review a case stemming from the Partial Birth Abortion Ban Act. The federal law has been struck down by judges in three states. Those states say that the act doesn't make an exception for using the technique to save the health of the mother.

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ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MELISSA BLOCK, host:

And I'm Melissa Block. The Supreme Court is stepping back into the abortion debate. Today the court said it would hear arguments next term on the constitutionality of the federal law known as the Partial Birth Abortion Ban Act. That law was passed three years ago. The court's announcement came on the day new justice Samuel Alito began his first week of hearing arguments. NPR's Nina Totenberg has the story.

NINA TOTENBERG reporting:

Alito has taken the place of Justice Sandra Day O'Connor who six years ago cast the decisive fifth vote that struck down a Nebraska law banning so-called partial birth abortion. Three years later, Congress adopted a similar law, asserting that it was significantly different from the Nebraska law. The lower courts, however, disagreed, and struck down the federal law, too. The Bush administration appealed, and today the Supreme Court agreed to resolve the controversy with a new justice who once declared that in his view there is no constitutional right to abortion.

The specific legal issue in this case is whether the federal ban on the use of the procedure abortion opponents call partial birth is constitutional. In 2000, when the Supreme Court struck down the Nebraska partial birth abortion ban, the court said that a significant body of medical authority viewed the procedure as safer than other abortion methods for women in some cases. And the court said that a law without an exception to preserve the health of the mother imposed an undue burden on a woman's right to have an abortion and thus was unconstitutional.

Three years later, Congress enacted a law without a health exception, and made specific findings that there are no situations in which a so-called partial birth procedure is medically necessary. When the law was challenged in court, however, the lower courts found that Congress was essentially trying to get around a Supreme Court decision by making findings not supported by the facts. The district court, in the case accepted by the Supreme Court today, heard from 11 highly regarded specialists in the abortion field. Ten of them said that in some cases, a so-called partial birth procedure is necessary to prevent hemorrhaging, organ failure or infertility.

And the court noted that even the one doctor who supported the ban conceded that he had used and would use the procedure in some circumstances. Thus, the district court concluded that the congressional finding that the procedure is never medically necessary is simply wrong. Indeed, the court found that a review of the testimony presented to Congress also established that there is no medical consensus in favor of the ban, and that the federal ban thus suffers from the same constitutional flaw that doomed the state law.

With the Supreme Court's composition in flux, though, the Bush administration petitioned the Supreme Court to take a second look at the issue, with the hope that a newly constituted court would reverse course. Now that hope is a real possibility. Advocates for both sides said as much today. Here's Jay Sekulow, of the conservative Center for Law and Justice.

Mr. JAY ALAN SEKULOW (Chief Counsel, American Center for Law and Justice): Look, this is a different court in a different time, and I think the case is going to come out differently because of it. You've got, this is the first substantive abortion case the court's taken in six years, the first federal restriction on abortion the Supreme Court's taken in, really, in its history. So I think it's going to be huge. And I think the ramifications are gigantic.

TOTENBERG: Planned Parenthood president Cecile Richards saw today's court action as gigantic, too, but from a different perspective. She called today's decision to hear the case a "dangerous act of hostility aimed squarely at women's health and safety."

Nina Totenberg, NPR News, Washington.

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