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US Supreme Court Takes on Partial-Birth Abortion Ban: Likely to Approve

By John-Henry Westen and Gudrun Schultz

WASHINGTON, D.C. United States, February 21, 2006 (LifeSiteNews.com) - The legality of partial-birth abortion will come under the scrutiny of the U.S. Supreme Court, the court announced today.  The Court will hear arguments and decide the case during its next term which begins in October.

An analysis by National Right to Life notes that the federal law now stands a good chance of being approved and the decision will rest on Justice Anthony Kennedy.  Among currently sitting Supreme Court justices, five have voted in favor of Roe v. Wade -- that is, in support of the doctrine that abortion must be allowed for any reason until "viability" (about five and one-half months), and for "health" reasons (broadly defined) even during the final three months of pregnancy. Two justices (Antonin Scalia and Clarence Thomas) have voted to overturn Roe, and two (John Roberts and Samuel Alito) have not voted on the matter. Justice Kennedy, although a supporter of Roe, voted in the 2000 Stenberg case to allow Nebraska to ban the partial-birth abortion method.

Commenting on today's Court announcement, Douglas Johnson, legislative director for the National Right to Life Committee (NRLC), said, "Unless the Supreme Court now reverses the extreme position that five justices took in 2000, partly born premature infants will continue to die by having their skulls punctured by seven-inch scissors."

In 2000, five justices of the Supreme Court, including retired Justice Sandra Day O'Connor, ruled that the abortion right originally created in Roe v. Wade allows an abortionist to perform a partial-birth abortion any time he sees a 'health' benefit, even if the woman and her unborn baby are entirely healthy. (Stenberg v. Carhart, June 28, 2000). This ruling struck down the ban on partial-birth abortion that had been enacted by Nebraska, and rendered unenforceable the similar bans that more than half the states had enacted.

Nevertheless, in 2003 Congress approved and President Bush signed a national law, the Partial-Birth Abortion Ban Act. When he signed the ban, the President called partial-birth abortion "a terrible form of violence [that] has been directed against children who are inches from birth."

The federal law bans "partial-birth abortion," a legal term of art, defined in the law itself as any abortion in which the baby is delivered "past the [baby's] navel . . . outside the body of the mother," OR "in the case of a head-first presentation, the entire fetal head is outside the body of the mother," BEFORE being killed. The complete official text of the law, in a searchable format, is here: http://www.nrlc.org/abortion/pba/partial_birth_abortion_Ban_...

The law would allow the method if it was ever necessary to save a mother's life.

The federal law has faced legal challenges in three different federal circuits, and its enforcement has been blocked by court orders. Federal district courts in all three circuits ruled that the federal law violated the 2000 Supreme Court ruling. In all three cases the adverse judgments were affirmed by the appellate courts. 

(with files from National Right to Life)

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