Reuters reports the Supreme Court agreed to review an appeals court ruling that declared the Partial-Birth Abortion Ban Act of 2003 unconstitutional because it lacks an exception to protect the health of a pregnant woman.
Partial-Birth Abortion Ban Act of 2003, passed after years of emotional debate, has never been enforced because of court challenges. Three lawsuits were brought challenging the law before it was even signed by President Bush. Six different federal courts around the country have all found the law to be unconstitutional.
According to the Associated Press, the outcome will likely rest with the two men that President Bush has recently installed on the court. Justices had been split 5-4 in 2000 in striking down a state law, barring partial birth abortion because it lacked an exception to protect the health of the mother.
We aren't talking about overturning Roe v. Wade here. The Partial-Birth Abortion Ban Act of 2003 only prohibits a horrific procedure, generally performed in the second or third trimester, in which a fetus is partially removed from the womb, and its skull is punctured or crushed. The Partial-Birth Abortion Ban Act of 2003, defines partial birth abortion:
Sec. 1531. Partial-birth abortions prohibited
1.(b) As used in this section--
(1) the term `partial-birth abortion' means an abortion in which the person performing the abortion--
(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.
In addition, Congress provided that this ban would not apply to a situation in which the mother would be put at risk:
This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
There is disagreement within the medical community as to wether the procedure is never medically necessary to protect a woman's health. The Justice Department contends that the appropriate question is not whether there is such a dispute, but whether there was substantial evidence to support the findings made by Congress.
The Justice Department asserts that Congress made the specific finding, after weighing the medical evidence, that a “medical ... consensus exists ... that [partial-birth abortion] is never medically necessary and should be prohibited.” This Congressional finding was based upon the following:
Partial-birth abortion “remains a disfavored procedure;”
The “overwhelming evidence” shows that it “is outside the standard of medical care;”
There is no credible evidence that partial-birth abortions are safe or safer than other abortion procedures; and
No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods.
I find it intriguing that those opposed to the ban and the mainstream media now religiously refer to this procedure as “what opponents call partial birth abortion.” It wasn't referred to like that during the Clinton administration. It's fascinating how this group uses propaganda so uniformly.
The case the Supreme Court will hear this fall comes from Nebraska, where the federal law was challenged on behalf of physicians. 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.
I don't see how anyone can support this abhorrent procedure.
UPDATE: At How Appealing, Howard Bashman wonders whether the Court could have attempted to influence the politics of the Alito confirmation battle by postponing the grant of review in this case until today? It hotly debated an interesting question, which I'm sure will bedebated by many who can't know the answer. But at Philly, Albert Yee reminds us that today is Justice Alito's first day on the job.