Pro-Lifers Hope 'Partial Birth' Ban Will Challenge Court Ruling

By Christine Hall | July 7, 2008 | 8:04 PM EDT

( - Pro-life activists hope that a partial birth abortion bill heading to House-Senate conference committee will prove the undoing of earlier court decisions allowing the practice.

A bill passed by both the House and the Senate would ban abortion procedures that involve delivering a baby and collapsing the skull (the dilation and extraction or D&X method) or severing body parts before crushing the skull (the dilation and evacuation or D&E method).

It's widely expected that the conference report will win final passage in both chambers, minus a Senate amendment affirming the Roe v. Wade decision, with President Bush's subsequent signature in even less doubt.

What is most in doubt is the fate of the abortion ban before the court.

"Certainly, this bill will be challenged," said Douglas Johnson, legislative director for the National Right to Life Committee (NRTL). "We just hope that by the time it gets up to the U.S. Supreme Court, there will be at least five justices there who will abandon the extreme position they took in the Nebraska case in 2000."

In Stenberg v. Carhart 530 U.S. 914, 920 (2000), the U.S. Supreme Court struck down by one vote a Nebraska partial birth abortion ban, ruling that the law didn't contain a necessary "health exception" (set forth in Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 and that the state's definition of the procedure was too vague and could ban another late-term procedure called "dilation and evacuation."

The court in Carhart said the Nebraska law had "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

Planned Parenthood President Gloria Feldt has said that the Supreme Court has made it clear that women have a constitutional right to seek the safest medical treatment available, including late-term abortion procedures.

The partial birth abortion bill "could put doctors in jail for providing the best and safest health care to women," Feldt argues in a point vigorously disputed by pro-lifers.

Johnson believes that the current federal bill has clarified the definition of partial birth abortion in such a way as to pass court muster. Now, it's defined as an abortion where the head or feet of the baby are delivered outside the body of the mother, past the navel.

"We don't see how that can be mistaken," said Johnson. "That may affect some justice's vote."

But, Johnson concedes, the weakest point may be court language saying Roe v. Wade guarantees the right to use the healthiest abortion method determined by the abortionist.

"Only one justice would have to change his or her mind," said Johnson. "Or you could have a change in personnel."

See Earlier Story:
Congress Nears Reconciliation on Partial Birth Abortion Ban
(Sept. 17, 2003)

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