Roberts court faces first abortion cases

In their confirmation hearings last year, John Roberts and Samuel Alito sidestepped pointed questions about whether they would overturn abortion precedents. Now, a year later, the country is about to get some answers.

Wednesday, the US Supreme Court takes up two cases challenging the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003.

The cases offer a first look at how the high court under Chief Justice Roberts will approach the divisive issue of abortion. While the Partial-Birth Abortion Ban Act poses no direct threat to major abortion precedents like Planned Parenthood v. Casey and Roe v. Wade, activists on both sides of the debate are watching closely to see if the two federal ban cases – and new justices on the court – trigger a turning point in abortion jurisprudence permitting more rigorous regulations at the state and federal level.

At issue in Gonzales v. Carhart and Gonzales v. Planned Parenthood is whether Congress acted within its authority when it mandated a national ban of so-called partial-birth abortions without including an exception to protect a woman's health.

Protection of a woman's health has been a paramount concern of the high court since Roe v. Wade. But the Partial-Birth Abortion Ban Act introduces a second concern – as the law puts it: "protecting the life of the partially-born child."

Supporters say the law is necessary to foster respect for human life by outlawing what they call a gruesome abortion procedure that approaches infanticide. Opponents see the federal ban as part of an agenda to gut and eventually overturn abortion precedents all the way back to Roe v. Wade.

That's why, during their confirmation hearings, Judges Roberts and Alito were asked early and often about abortion and the legal concept of enforcing existing precedents known as stare decisis.

"I do think it is a jolt to the legal system when you overrule a precedent," Roberts told the Senate Judiciary Committee in September 2005. But he added, "The principles of stare decisis [also] recognize that there are situations when that's the price that has to be paid."

His cautious answers extolling the virtues of both upholding and overturning precedents thus set the stage for what could become a dramatic moment of truth at the high court in the two cases to be argued Wednesday.

"No law has ever been upheld where it is understood that part and parcel of the regulation is a requirement that a woman absorb an increased risk to her health," says Roger Evans, legal director of Planned Parenthood Federation of America, which is challenging the law.

US Solicitor General Paul Clement says the law does not impose an undue burden on a woman's access to abortion. "The act simply eliminates a disfavored and rarely used late-term abortion procedure," he says in his brief to the court. "No precedent of this court requires the judicial invalidation of that legislative measure."

With the retirement of Justice Sandra Day O'Connor, there is much speculation about how the new lineup of justices will rule on the issue. The last time the court considered a similar case, in 2000, it split 5-to-4. Justice O'Connor cast the deciding vote to strike down a similar partial-birth abortion ban enacted in Nebraska. Now, O'Connor has been replaced by Justice Alito. Many analysts say that Alito and Roberts will align with conservatives Antonin Scalia and Clarence Thomas.

On the other side, the liberal wing of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer is expected to hold firm. That would place Justice Anthony Kennedy in position to cast the deciding vote.

But a vote by Justice Kennedy to uphold the statute wouldn't signal the potential demise of Roe, analysts say.

"There is a tremendous amount of space and a tremendous amount of time in years between the upholding of this statute [if the court votes to uphold it] and any direct threat to Roe," says David Garrow, a US legal historian who teaches at Britain's Cambridge University.

Although he might join the court's conservative wing to uphold the statute, Kennedy nonetheless remains a centrist who voted with Justices O'Connor and Souter to affirm the central holding of Roe in the 1992 Casey decision. Rather than enabling an all-out conservative assault on liberal abortion precedents, Kennedy is more likely to use his swing-vote power to moderate the more aggressive preferences of his conservative colleagues, some analysts say.

At issue in the two cases now before the court is to what extent states and the federal government can pass laws restricting abortions without including a health exception.

When Congress passed its partial-birth abortion statute in October 2003, lawmakers announced that they intentionally did not include a health exception in the statute because "a partial-birth abortion is never necessary to preserve the health of a woman."

That conclusion directly conflicts with the holding of the five-justice majority in the 2000 Nebraska case. Lawmakers said they reached a different conclusion based on evidence presented at various trials and at congressional hearings.

The law was immediately challenged in three federal courts. All three struck it down as unconstitutional, in part because it lacked a health exception as required in the high court's 2000 Nebraska decision. Abortion providers and other medical experts testified at the trials and disputed the congressional finding that the procedure was never necessary to preserve a woman's health.

So-called partial-birth abortion is not a common procedure, but in certain instances, medical authorities say, it can be the safest option for women in their second trimester of pregnancy. The procedure involves widening the cervix, using forceps to extract the fetus, and then killing the fetus once it is partially removed from the woman.

The Partial-Birth Abortion Ban Act does not use medical terms to identify the outlawed procedure. It subjects doctors to two years in prison and imposes fines if during the course of performing an abortion either the head or the lower half of the fetus's body to the navel is outside the mother at the time the doctor kills the fetus.

Under the terms of the law, a doctor would avoid liability by killing the fetus prior to extracting it, rather than extracting it first.

Abortion supporters say the new law, if upheld, would force doctors to alter their abortion procedures to comply with a congressional mandate rather than having the flexibility to follow their professional judgment about the best treatment option.

"When a woman's health is at stake, women would like their physicians to make appropriate medical decisions – not their representatives in Congress," says Vicki Saporta of the National Abortion Federation.

In addition, the law places doctors in the difficult position of potentially having to consider their own legal liability rather than focusing exclusively on their patients' well-being, abortion-rights activists say. This could deter some doctors from performing second trimester abortions, they add.

Abortion opponents say that the law reflects the legal reality that the process of birth converts a fetus into a person with rights independent of the rights of the mother. The partial-birth abortion law draws a bright line to prevent a procedure that comes dangerously close to infanticide, they say.

In their written briefs to the high court, both sides are directing the thrust of their arguments at Kennedy.

In the 2000 Nebraska case, Kennedy didn't just issue a dissent. He launched an impassioned 25-page attack on the majority's position. He accused his fellow justices of betraying his understanding of the 1992 landmark Casey decision.

"When the court reaffirmed the essential holding of Roe, a central premise was that the states retain a critical and legitimate role in legislating on the subject of abortion," Kennedy wrote in his Nebraska dissent. He said the state's partial-birth abortion law was "well within the state's competence to enact."

Solicitor General Clement echoes that argument in his brief saying that Congress shares the same legislative power as the states to enact a ban. He says that Congress's legislative finding that partial-birth abortion is never medically necessary is entitled to deference by the courts.

Lawyers challenging the law are also reaching out to Kennedy in a different way. They are appealing to the Justice Kennedy who has taken a firm stance against Congress encroaching into what Kennedy views as the domain of the Supreme Court to identify and enforce the boundaries of constitutional rights.

In the partial-birth abortion law, the lawyers say, Congress is attempting to redefine abortion rights in open defiance of Supreme Court rulings protecting those rights.

"Congress has not merely promulgated a measure that poses a significant threat to women's health. Of equal concern, Congress has issued a rebuke to this court, challenging its pre-eminence as the branch of government whose duty it is to say what the law is," writes Priscilla Smith of the Center for Reproductive Rights in her brief.

Roe v. Wade (1973) – The Supreme Court's 7-to-2 ruling established that a woman has a constitutional right to choose to end her pregnancy.

Planned Parenthood v. Casey (1992) – The high court's 5-to-4 decision reaffirmed the central holding of Roe v. Wade, while allowing that states may regulate abortion procedures as long as they don't put an undue burden in the path of a woman seeking an abortion.

Stenberg v. Carhart (2000) – In a 5-to-4 vote, the high court struck down a Nebraska statute that banned so-called partial-birth abortions. The court said the state law did not include an exception to protect the health of a woman and thus created an undue burden on the right to an abortion.

– Material derived from CQ Researcher, Cornell Law School