{"id":53975,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-supreme-court-grants-review-on-the-constitutionality-of-congress-partial-birth-abortion-ban-act.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-supreme-court-grants-review-on-the-constitutionality-of-congress-partial-birth-abortion-ban-act","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-supreme-court-grants-review-on-the-constitutionality-of-congress-partial-birth-abortion-ban-act.html","title":{"rendered":"The Supreme Court Grants Review on the Constitutionality of Congress’ Partial Birth Abortion Ban Act"},"content":{"rendered":"\n
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The Supreme Court Grants Review on the Constitutionality of Congress’ Partial Birth Abortion Ban Act<\/h1><\/td>\n <\/tr>\n

By VIKRAM DAVID AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Mar. 03, 2006<\/td>\n\n <\/tr>\n <\/table>\n

Last week, the Supreme Court granted review of a case, Gonzales v. Carhart<\/i><\/a>, in which the lower court had struck down the federal Partial Birth Abortion Ban Act (PBABA). Granting review in this case may be the Court’s biggest action this year in the area of abortion rights. <\/p>

In particular, the Court’s taking up the dispute over the PBABA may provide important information on the two new Justices (especially Chief Justice Roberts) and on the one veteran Justice (Justice Kennedy) who – with Justice O’Connor’s departure — now finds himself in a new role as the single, key swing vote in many areas of constitutional law.<\/p> \n\n\n

Background: The PBABA, and the Lower Federal Courts’ Decisions<\/b><\/p>

The PBABA authorizes fines and\/or jail terms of up to two years for any doctor who performs a certain kind of late-term abortion (called by Congress a “partial birth abortion”) — a procedure Congress tried to define in the Act itself.<\/p>

A number of federal district courts invalidated the Act because it does not provide a narrow and non-vague definition of the prohibited procedure itself, and (perhaps more importantly) because the Act does not have an exception that would permit the procedure to be used when its use would be in the best interests of the mother’s health. <\/p>

In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey<\/i><\/a>, the Supreme Court said that a pregnant woman has a constitutional right to abortion procedures that are “necessary, in appropriate medical judgment, for the preservation of [her] life or health<\/u>” (emphasis added). <\/p>

Then, in 2000, in Stenberg v. Carhart<\/i><\/a> a five-member majority of the Court applied this language in Casey<\/i> to strike down a Nebraska statute that prohibited certain late-term abortion procedures that the Nebraska legislature had also termed “partial birth” abortions. The Stenberg<\/i> majority reasoned, among other things, that Nebraska’s definition of “partial birth” abortions swept in procedures that at least many experts in the medical profession think can sometimes be the best and safest course of action for a woman seeking to end pregnancy.<\/p>

Based on these precedents, every U.S. Court of Appeal to rule on the issue has agreed with the district courts that the PBABA is unconstitutional. Because of this lower court consensus, some observers were mildly surprised when the Supreme Court agreed to hear one of these cases, coming (coincidentally) from Nebraska and the U.S. Court of Appeals for the Eighth Circuit. (Dr. Carhart is a Nebraska abortion provider and the challenger in both the 2000 case and the one on which the Court just granted review; that is why his name is in both case titles.).<\/p>

What will Justice Alito’s and Chief Justice Roberts’ Takes Be?<\/b><\/p> Column continues below \u2193<\/a>\n\n