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Law profs anticipate Supreme Court case

Karen Langley | Monday, April 3, 2006

With the U.S. Supreme Court poised to hear a case challenging a federal partial birth abortion act, Notre Dame legal experts say the case may seriously affect current abortion law and the future of abortion-related jurisprudence.

The Court said on Feb. 21 it will hear the case Gonzales v. Carhart and decide upon the constitutionality of the federal Partial Birth Abortion Ban Act of 2003.

The 2003 act bans late-term abortions in which a viable fetus is partially delivered before being aborted, except in cases when necessary to save the mother’s life.

It does not, however, include an exception for the health of the mother – the point that led an appellate court to rule it unconstitutional.

Gonzales will give the Court an opportunity to reconsider its 5-4 decision to strike down a Nebraska law banning partial birth abortions in the 2000 case Stenberg v. Carhart – a possibility political science professor Donald Kommers said makes Gonzales a very significant case.

“A reversal of that decision would result in effectively sustaining the constitutionality of similar statutes passed by many other states,” Kommers said Friday.

The Stenberg ruling struck down 30 state partial birth abortion bans because although they allowed for an exception if needed to save the life of the mother – like the federal act – there was no exception made for the mother’s health, law professor O. Carter Snead said Friday.

In its monumental 1973 Roe v. Wade decision that legalized abortion, the Court said any limit on abortion must include exceptions for both the health and the life of the mother. In Doe v. Bolton – Roe’s companion decision – Snead said the Court defined health expansively so that it encompasses many factors only tangentially related to a woman’s physical health.

“The bottom line,” Snead said, “is the state and federal government may not ban abortions before viability,” which is the point of development at which a fetus is capable of living outside the uterus.

“After viability, they cannot ban abortions if an abortion provider claims that the procedure in question is necessary to preserve any aspect of the woman’s well being – financial, psychological or familial.”

The state abortion bans struck down in Stenberg did not include exceptions for health both because such an exemption has been found unnecessary and because it would severely constrain the practical effects of a ban.

“Health is [currently] defined so broadly that it prevents the political branches from limiting abortion at all,” Snead said. “The American Medical Association has stated that partial birth abortion is ‘not good medicine’ and is never necessary to preserve the health of a woman.”

In deciding Gonzales, the Court may choose to redefine health – a definition Snead said is the single most important factor in abortion decisions – in a more “commonsense way.”

With its recent additions of Chief Justice John Roberts and Justice Samuel Alito, the Court is likely to uphold the federal act and overturn Stenberg, both professors said. Alito, who Kommers and Snead said will likely vote to uphold the federal ban, replaced Justice Sandra Day O’Connor, who voted with the majority in Stenberg to strike down the state ban.

“I think it’s likely the Court will overturn Stenberg in a 5-4 decision,” Snead said, adding that the question considered in deciding relevant cases is always what the Constitution requires in the abortion context.

The Court is unlikely to admit to making a mistake in its Stenberg decision, Kommers said, but “in some matters, the Court is more deferential to congressional than to state laws.”

“I think here the Court will defer to Congress’ judgment on the matter because of its superior fact-finding capabilities, findings of fact that in effect conclude that a ban on partial birth abortion poses no real threat to the health of the pregnant woman,” he said.

The case, Snead and Kommers agreed, may have an extremely significant impact upon the future of constitutional law.

If Stenberg is overturned, “the elected branches of government will, for the first time in 33 years, have an opportunity to impose meaningful limitations on abortions,” Snead said.

An overruling of Stenberg would undermine Roe because the latter decision prohibited bans on abortions in the third trimester if they were needed to preserve the mother’s life or health, Kommers said.

“The case would result in the further hollowing out of the Roe case,” he said.

The Court is expected to reach a decision sometime in the fall.