Will Supreme Court Uphold Ban on Partial-Birth Abortion?

Concerned Women for America has joined an amicus brief filed in the second partial-birth abortion* case, Gonzalez v. Planned Parenthood, which is now before the U.S. Supreme Court. The brief encourages the Court to overturn its 2000 ruling, Stenberg v. Carhart, which declared Nebraska’s ban on partial-birth abortion unconstitutional.

The brief, filed by the Christian Legal Society, is joined by Concerned Women for America, National Association of Evangelicals, Pro-Life Legal Defense Fund and Alliance Defense Fund. It was written by Gregory S. Baylor and Steven H. Aden of the Center for Law & Religious Freedom, Richard W. Garnett of the University of Notre Dame Law School and Michael Stokes Paulsen of the University of Minnesota Law School.

After Congress’ vote to ban partial-birth abortion in 2003, which President Bush signed into law, federal district courts in California, Nebraska and New York immediately blocked the law’s enforcement.

As a result of lawsuits from Planned Parenthood, National Abortion Federation, Center for Reproductive Rights, and abortion doctors from several states, all three federal courts of appeals upheld the lower court rulings, claiming to be bound by the Supreme Court’s 2000 decision.

Until then, 29 states had successfully passed bans against partial-birth abortion.

In the 2000 Stenberg v. Carhart case, the federal district court decided that Nebraska’s partial-birth abortion ban was unconstitutional. Both the 8th Circuit and the Supreme Court agreed, which resulted in other state partial-birth abortion bans not being enforced.

While some might claim that the Supreme Court should respect stare decisis, a judicial doctrine that gives deference to prior court decisions on similar issues, the Christian Legal Society’s brief disagrees, arguing:

That case is recent; it was decided by a closely divided Court, over strenuous – and persuasive – dissents; it has not been reaffirmed repeatedly, nor has it served as the foundation for a body of law or line of cases; it is an outlier even in its relatively discrete area; it cannot reasonably be regarded as having created reliance interests; and, most important, it was wrongly decided.

“The brief we’ve joined strongly lays out the reasons why the Court’s own criteria for adhering to precedent are not met in this case,” said Jan LaRue, CWA’s Chief Counsel. “Furthermore, the brief rebuts the extreme and unreasonable understanding of the ‘health’-related reasons thought to override limits on late-term abortion procedures.”

In a recent ABC News poll, 69 percent of Americans said partial-birth abortion should not be legal, while 86 percent of Americans opposed abortions that occur in the sixth month of pregnancy or later. Partial-birth abortion is usually performed in the third trimester.

A 5-4 vote decided the 2000 case, reflecting deep divides within the Court. With Justice Samuel Alito now on the Supreme Court in the place of Justice Sandra Day O’Connor, who voted to strike down the Nebraska law, the hope is that the Court will uphold the ban of the abhorrent procedure, which is described here.

For more information on partial-birth abortion in the courts, click here.

Click here for the brief.

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* Partial-birth abortion is performed on unborn babies beginning at the fifth month of development. The abortionist begins by dilating the woman's cervix for two days. On the third day, he uses forceps to deliver the entire baby except for the head. At this point, the abortionist uses blunt surgical scissors, or a trochar, to stab the baby at the base of the skull. He inserts a vacuum tube and sucks the child's brains out. Then he can collapse the skull and pull the dead baby through the cervical opening.