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Justices to Revisit Late-Term Abortion Ban
Yahoo News/AP
By GINA HOLLAND, Associated Press Writer
February 21, 2006

WASHINGTON - The Supreme Court said Tuesday it would consider reinstating a federal ban on what opponents call partial-birth abortion, pulling the contentious issue back to the high court on conservative Justice Samuel Alito's first day.

Alito could well be the tie-breaking vote when the court decides if doctors can be barred from performing the abortion procedure.

It is the first time the court has considered a federal restriction on abortion, and conservatives said they expect the membership change to affect the outcome.

"This is the frontline abortion case in the country," said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, who represents members of Congress in the case.

Justices split 5-4 in 2000 in striking down a state law barring the same procedure because it lacked an exception to protect the health of the mother. Justice Sandra Day O'Connor, who was the tie-breaking vote, retired late last month and was replaced by Alito.

Abortion was a major focus in the fight over Alito's nomination, and that of new Chief Justice John Roberts. Neither divulged how he would vote.

Even with O'Connor's retirement, there are five votes to uphold Roe v. Wade, the 1973 landmark ruling that established a woman's right to an abortion.

Abortion rights groups were worried, however, that the new court could make it easier for legislators to limit women's access to abortions.

"Today's action means the core principle of protecting women's health as guaranteed by Roe v. Wade is in clear and present danger," said Nancy Keenan, president of NARAL Pro-Choice America.

Justices will hear arguments this fall, as voters are preparing for midterm elections, with a ruling likely next year as presidential campaigns are gearing up.

Congress had voted in 2003 to prohibit the type of abortion, generally carried out in the second or third trimester, in which a fetus is partially removed from the womb and its skull punctured or crushed.

Justices were told that 31 states also barred so-called "partial-birth" abortions over the past eight years.

Doctors who perform the procedure contend that it is the safest method of abortion when the mother's health is threatened by heart disease, high blood pressure or cancer.

The 2003 passage followed nearly a decade of attempts by Republican leaders and two vetoes by former President Clinton.

The law was never put in effect. It was struck down by judges in California, Nebraska and New York because it had no exception to protect the women's health. Those three decisions were upheld by appeals courts.

Defenders of the law maintain that the procedure is never medically necessary to protect a woman's health.

The Supreme Court recently dealt with an abortion case from New Hampshire. Justices on a 9-0 vote reaffirmed in January that states can require parental involvement in abortion decisions and that state restrictions must have an exception to protect the mother's health.

The case that will be heard this fall comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians.

A judge in Lincoln, Neb., ruled that the law was unconstitutional, and the 8th U.S. Circuit Court of Appeals in St. Louis agreed last summer, prompting the Supreme Court appeal. Federal judges in New York and San Francisco also declared the law unconstitutional, and appeals courts agreed.

Fifteen states urged justices to review the case: Alabama, Arkansas, Colorado, Florida, Idaho, Kansas, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Virginia.

The case was one of four that justices agreed to hear on Tuesday, Alito's first day on the bench. The others involve more routine issues: patents, prison sentences and lawsuits over pay phone charges.

The case is Gonzales v. Carhart, 05-380.

Commentary:
The problem is simple. We've never given the courts the power to decide which rights we have or don't have. They can return our rights to us once the government had taken them away, but not the converse. Conservatives don't understand this concept and should therefore be banned from being judges.