Government appeals on abortion ban
on Sep 26, 2005 at 11:47 am
The Justice Department on Friday asked the Supreme Court to uphold the constitutionality of a nationwide ban on a medical procedure that abortion opponents persuaded Congress to pass to outlaw what they call “partial-birth” abortions. The case is Gonzales v. Carhart, an appeal from the Eighth Circuit. It has been docketed as 05-380. (You can link to the cert. petition, with thanks to How Appealing, here.)
The petition was filed early enough that the case could be heard in the current Term of the Court, if the Justices agreed to review it. That will not be known until later this year at the earliest. It is possible that the Court will hold the case until after it rules upon a pending abortion case from New Hampshire, involving a state law requiring notice to parents before a pregnant minor may have an abortion; there are some parallel legal issues, although the New Hampshire law and the federal ban deal with different abortion restrictions. (The New Hampshire case, Ayotte v. Planned Parenthood of Northern New England, 04-1144, is scheduled for oral argument on Nov. 30.)
The Justice Department, in its new appeal, conceded that the New Hampshire and federal cases involve “related questions,” but it asked the Court not to hold the federal case until after the state case is decided. This case, it said, involves the validity of “a significant act of Congress that has bleen invalidated and permanently enjoined by the lower courts. Granting certiorari now would enable this Court definitively to address the constitutionality of the Act and, if the Court were to uphold the Act, to allow it to take effect as expeditiously as possible.” Holding the case until after the New Hampshire case is resolved, it argued, would result in significant delay. It also contended that it would be of benefit to review the two cases in the same Term of the Court to fully consider the related issues.
The Court last confronted the intense controversy over “partial-birth” abortion in 2000, when it struck down a Nebraska ban in the case of Stenberg v. Carhart. (That case involved a Nebraska doctor, Leroy Carhart, who also is involved in the newly appealed federal case.) The Court ruled that the state law lacked a health exception and imposed an “undue burden” on women’s right to end their pregnancies.
In enacting the new federal ban, Congress made its own finding that, as a medical fact, there is never a medical necessity for a “partial-birth” abortion. The Eighth Circuit ruled that the 2000 Supreme Court decision requires such an exception. Two District Courts in other Circuits have ruled the same way, and those cases are on appeal.
In its petition, the Justice Department posed the following question: “Whether, notwithstanding Congress’s determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.”
Although the government did not raise a separate question on the standard of constitutionality courts are to use in judging abortion restrictions, it did contend that the Eighth Circuit used a too-relaxed standard of invalidity in striking down the federal ban as written.
