Supreme Court Upholds Federal Partial-Birth Abortion Ban

Ruling Proves Importance of Voting Pro-Life First

by Jim Cole, General Counsel

Some who claim to be prolife say that voting for or against political candidates on their pro-life stands is futile. Since abortion law is made largely by the federal courts, they argue, and elected officials cannot change abortion law, pro-lifers should assess candidates on all of the issues, not just pro-life concerns.

This argument was refuted in April by the Supreme Court’s decision in Gonzales v. Carhart. By a 5-4 decision, the justices upheld the federal Partial-Birth Abortion Ban Act of 2003. Federal bans on
partial birth abortion had been approved by Congress twice before, in 1996 and 1997, only to be vetoed by a pro-abortion President. The 2003 bill was signed by a pro-life President whose election in 2000 showed that every single vote counts. The constitutionality of the bill was upheld thanks to the opinions of new justices President Bush appointed and the U.S. Senate confirmed. The Act and the Carhart ruling would not have happened if voters had not elected a President and U.S. Senators who made them possible.

Not only did the Carhart ruling limit the scope of the abortion license established by Roe v. Wade by upholding a ban on one procedure, it may also mark a somewhat favorable change in the legal atmosphere in which future abortion regulations are reviewed by the courts.

In 1999, a Nebraska state law banning partial-birth abortion was held unconstitutional by the U.S. Supreme Court on a 5-4 vote. The 2003 Act was drafted to cure the flaws that the Court’s 1999 ruling had identified. The Act utilizes a far more detailed description of the forbidden procedure than the Nebraska law did, so the Court could find that it does not sweep into the scope other types of abortions. The Supreme Court held this avoided the “overbreadth” problem of the Nebraska law and was not unduly burdensome on a woman’s choice for abortion.

A second ground on which the Nebraska law had been struck down was its lack of a health exception. The federal Act does not have one, although it does contain a “life of the mother” exception. The Supreme Court found that the evidence in the case did not compel a conclusion that women’s health was endangered without a health exception. The Court noted that other procedures to accomplish an abortion at the same stage were available. For these reasons, The Court allowed the Act to take effect. However, the Court left open the possibility that women who allege adverse health effects because of certain conditions they suffer can challenge the applicability of the law to them in a later lawsuit.

The holding that no health exception is required may represent a sea change in the attitudes of the federal courts toward pro-life laws. In the past, the courts have often appeared to presume that such laws are unconstitutional from the outset. The Carhart ruling contained language exhibiting a new attitude of neutrality. In its approach to the Act, the Court indicated that instead of showing suspicion of legislative attempts to promote respect for life, federal courts ought to give such laws the same measure of respect that other laws are given.

If this new direction is followed in future decisions, it may well result in additional success for pro-life laws. But it remains to be seen whether Carhart represents a lasting change in abortion jurisprudence. To ensure that the decision sticks, it is vitally necessary to continue to elect a
President and Senators who will nominate and confirm open-minded judges to sit on federal courts. Only such judges will avoid the demagogic ideology of Justice Ginsberg’s dissent, in which abortion was once again portrayed as an essential requirement to keep women from being oppressed.

Carhart will be remembered as a wonderful pro-life victory only if we pro-lifers stick to our cause in the voting booth. The 5-4 majority in Carhart could well become a minority when the next vacancy
on the Supreme Court is filled if a pro-life President and pro-life Senate are not elected in 2008.

Impact on Missouri Ban

The 1999 Missouri partial-birth abortion ban has been enjoined by the federal courts since the day after the General Assembly overrode the Governor’s veto, an event that many readers will remember from attending the pro-life rally at the Capitol in Jefferson City at the time of the override.

The law has been the subject of both federal court and state court challenges mounted by Planned Parenthood. The state courts ruled that the statute does not embrace any abortion procedures except partial-birth abortions. The federal courts ruled that without a health exception, the Missouri statute violated the U.S. Constitution. The U.S. Supreme Court withheld a
ruling on the Missouri law while it considered the federal law.

A few days after Carhart was handed down, the U.S. Supreme Court remanded the Missouri case to the Eighth Circuit for reconsideration in light of the ruling in Carhart. It is expected that the Eighth Circuit will now uphold the Missouri law. If it does, the effect will be to make partial-birth abortion the subject of state enforcement as well as federal enforcement, enabling county prosecutors as well as U.S. Attorneys to prosecute any violations.