Major Abortion Case Goes to Justices
WASHINGTON — The Supreme Court set the stage Tuesday for a major ruling on abortion by agreeing to decide whether Congress can outlaw what critics call "partial-birth" abortions through the second trimester of a pregnancy.
The fate of a federal law, the first nationwide ban on an abortion procedure, is probably in the hands of President Bush's two new appointees: Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
The court has been closely split in the past on how strictly the government may regulate abortion, with former Justice Sandra Day O'Connor usually casting a deciding vote.
Alito, O'Connor's replacement, took his seat on the bench for the first time Tuesday morning -- just as the court's staff was issuing a list of cases that will be heard in the fall. It included Gonzales vs. Carhart, the Bush administration's appeal of a lower court ruling that declared unconstitutional the Partial-Birth Abortion Ban Act of 2003.
The legal dispute now turns on two questions: Can the government regulate abortion in a way that might endanger the health of some women? And whose opinion deserves greater weight in deciding whether this abortion procedure is needed -- members of Congress or the medical experts who testified in court?
The high court will hear arguments on the case in October. A ruling is not likely to deal directly with Roe vs. Wade and the basic right of women to choose abortion. However, a victory for the administration would signal that the reconstituted court is more willing to regulate and restrict abortion.
Justice Anthony M. Kennedy has voted to uphold the basic right to abortion, but has said states may ban the procedure in question, known as intact dilation and extraction. Roberts and Alito are believed to be abortion opponents, and they -- joined by Justices Antonin Scalia and Clarence Thomas, who say the government may ban all abortions -- could help form a new majority to uphold the federal ban.
Six years ago, the high court struck down a state ban on the controversial procedure in a Nebraska case, saying medical experts believed that procedure was safer for the woman because it reduced the risk of bleeding and infections. The decision came on a 5-4 vote, with O'Connor in the majority.
Republican lawmakers then pushed through a federal ban that could send doctors who perform such abortions to prison for two years. They said the procedure was gruesome and inhumane because it involved crushing the skull of the fetus as it was removed. Congress also said that the abortion procedure was "never medically indicated."
