When President Bush signed the Partial Birth Abortion Ban Act of 2003 he vowed to vigorously defend it against any legal challenges. Less than an hour later the federal law was tied up by the first of three lawsuits against it.
Early last week judges in the two subsequent lawsuits upheld lower court rulings that the law, banning a procedure involving the partial delivery and medical extraction of a fetus, is unconstitutional. Those decisions, and the recent appointments of Chief Justice John Roberts and Justice Samuel Alito, increase the likelihood that the Supreme Court will review the case.
“First, the Act lacks the constitutionally required health exception. Second, it imposes an undue burden on women's ability to obtain previability abortions. Third, it is unconstitutionally vague,” wrote Judge Stephen Reinhardt in the 3-0 ruling for the 9th Circuit Court of Appeals in San Francisco.
On the same day, the 2nd Circuit Court of Appeals ruled 2-1 that the law is unconstitutional because it lacks an exception for the health of the woman.
In July of 2005, the 8th Circuit Court of Appeals issued a similar ruling. That case has been appealed to the United States Supreme Court by attorney general Alberto Gonzales and has not yet been reviewed.
These two most recent rulings have led many to believe that the Supreme Court will hold hearings on the constitutionality of the law.
“I think there is a good possibility that they will review the case,” said Jennifer Dalven, deputy director of the ACLU Reproductive Freedom Project in New York.
Dalven and her colleagues at the ACLU, which represented the National Abortion Federation in their lawsuit in New York's 2nd Circuit Court of Appeals, are pleased that the courts have decided to uphold the lower court rulings.
“We think that congress should stop playing politics with women's health and leave medical decisions to women and their doctors,” said Dalven.
But anti-abortion activists believe that it is the courts that are playing politics.
“I think our organization sees [the recent rulings] as a usurping of the democratic process,” said Danielle Huntley, president of Students for Life of America. “Seventy percent of Americans support a ban on partial birth abortions.”
Huntley added that the former United States Surgeon General C. Everett Koop concluded that partial birth abortions are never medically necessary.
While people's views on abortion are deeply personal, there is legal precedent in this case mandating that any anti-abortion law must include an exception for the health of the woman.
That precedent stems from the 2000 Supreme Court decision Stenberg v. Carhart in which a similar partial birth abortion ban established by the state of Nebraska was ruled unconstitutional.
But precedent does not necessarily regulate how Supreme Court justices will rule.
Because of the new make-up of the Supreme Court, they could overturn Stenberg and decide that the law is constitutional, said Beth Parker, a partner with Bingham McCutchen LLP who represented Planned Parenthood in their 9th Circuit Court of Appeals case.
Out of nine justices, there are four presumably conservative votes and four presumably liberal votes, according to professor Frank Askin, a constitutional law professor at Rutgers University law school in New Jersey and director of the Constitutional Litigation Clinic.
Justices Scalia, Alito, Roberts and Thomas, who Askin refers to as “the four horsemen of the apocalypse,” are predicted to vote in favor of anti-abortion legislation. Justice Kennedy is widely believed to be the new swing vote on the court, a role previously held by retired Justice O'Connor.
“Kennedy is our only hope now,” said Askin.
Whether or not the Supreme Court decides to review the case is still an open question.
Often the court will not review a case unless there is a split in opinion, according to Paul Persons, a political science professor at Chico State University.
But so far, “the issue has not been taken up in the more conservative courts,” said Persons.
However, Dalven of the ACLU still believes there is a good chance the court will hear the case. “There are other considerations when the Supreme Court decides whether or not to review a case, one of those is whether there is a split, but when the lower courts strike down a federal law as unconstitutional, then the chances are good that they will review the case,” said Dalven.