New Justices Tested on Abortion Ban Ruling The U.S. Supreme Court will review the 2003 ban on so-called "partial-birth abortions" on Wednesday. Similar state laws have been struck down by the high court before -- but this time, there are two new justices on the bench who many believe are more conservative when it comes to a woman's right to choose.
NPR logo

New Justices Tested on Abortion Ban Ruling

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
New Justices Tested on Abortion Ban Ruling


New Justices Tested on Abortion Ban Ruling

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


This is DAY TO DAY, I'm Madeleine Brand in our studios at NPR West.


And I'm Alex Chadwick in Washington D.C., where yesterday I spent time with our personal finance contributor Michelle Singletary. We were on the campus of George Washington University talking with students about paying those very expensive tuition costs. You can hear our conversation later in the program.

BRAND: First though, the Supreme Court will hear its first major abortion cases of the new term, tomorrow. At issue is the legality of the Partial Birth Abortion Ban Act that was passed by congress three years ago and signed by President Bush.

Joining us to discuss this is Dahlia Lithwick, Legal Analyst for DAY TO DAY and the online magazine Slate, Hi Dahlia.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Hey Madeleine.

BRAND: Dahlia there are actually two cases, and they're dealing with the same issue. And that is whether or not this law - this Partial Birth Abortion Ban Act - is legal.

Ms. LITHWICK: That's right, and in order to sort of be very, very clear, we sort of need to define this term what is a partial birth abortion, the thing that act is trying to ban. And of course both parties disagree on almost everything about that.

They can agree the procedure is very rare, it happens in about only one-and-a-half percent of all abortions. And they can agree that it happens in mid to late term abortions - it's not a procedure used in early abortions. Beyond that there is no agreement at all. Opponents call it just a gruesome, horrific procedure in which the fetus is partially delivered and then killed and it's never medically necessary.

Abortion rights supporters and many physicians say no, that that term is much too broad - partial birth abortion - that it sweeps in a lot of other types of procedures that are, in fact, medically necessary. So we're not even in agreement about what exactly it is that Congress was trying to ban in 2003.

BRAND: But Dahlia, several years ago the Supreme Court decided a similar case, and so why is it considering this case again?

Ms. LITHWICK: Well, because everything is changed since then. In 2000 the court did decide by a 5-4 margin - the case of Stenberg versus Carhartt - and they looked at the Nebraska ban that came out of the state of Nebraska. It was substantially similar to the federal ban they are looking at tomorrow. The courts found though - again by a 5-4 vote - that the term that they issued was just too vague and also that the ban was unconstitutional because it didn't account for exceptions in the case where the mothers health was threatened. So they essentially said, we are going to strike down this ban, it creates an undo burden on the mother and therefore it's unconstitutional.

Well congress responded in 2003 to that case, by passing a federal ban. And instead of making a health exception for the mother, they simply found as a matter of fact, you never need to have a health exception for the mother - that is simply never medically necessary to have this kind of a procedure.

So the other big difference since 2000, is not only that congress has made findings of fact that suggest they say that the ban is now constitutional, the composition of the court has changed. And that is probably the most important thing. Sandra Day O'Connor is gone, Samuel Alito has come in - and he has certainly suggested in prior writings that he is much less sympathetic to abortion rights than his predecessor.

BRAND: And also there is a new Chief Justice John Roberts, where is he on this?

Ms. LITHWICK: Well we don't know he is a little harder to pin down. Again, he is replacing Chief Justice Rehnquist who was an opponent of abortion rights. And it's most likely, I think, that his sympathies lie in the former Chief Justices Rehnquist's camp. Although he has been quite clear that he puts a lot of faith in stare decisis, or the notion that precedent rules.

And so I think there is some question about whether he could sort of lightly knock down a case that's only, in fact, six-years-old.

BRAND: Now this is also brings up another issue, and that is the issue of which branch of government should hold more power in these types of cases, right? Whether or not congress can overrule the Supreme Court?

Ms. LITHWICK: That is exactly right Madeleine. At the heart of this case we have a really thorny question about who is - in effect - gets the last word. And congress is saying look, you made a major decision in 2000, we say you are wrong. And we say there never needs to be a health exception - that is the end of the scrutiny. The court may or may not have a problem with that. The court tends to say, look, the judges get the last word on what is constitutional. Particularly in a case like this, where Congress' findings of facts may not have been as detailed and involved as the court would have liked.

In the end of the day, I think this is going to come down to one justice, again, Anthony Kennedy, and a fight in his own sort of constitutional soul about judicial supremacy. On the one hand, does the court get the last word, and on the other hand, his absolute abhorrence for this procedure. He wrote a dissent in Stenberg in 2000 that made it clear that this procedure makes him absolutely, viscerally sick.

So where he is going to come down on sort of court supremacy versus how he feels about this procedure, may really be the nut of this case.

BRAND: Dahlia Lithwick is a Legal Analyst for the online magazine Slate and for us here at DAY TO DAY, thank you Dahlia.

Ms. LITHWICK: My pleasure.

(Soundbite of music)

BRAND: There is more coming up on DAY TO DAY from NPR News.

Copyright © 2006 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.