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High court concerns

February 22, 2006

NOBODY LIKES PARTIAL-BIRTH ABORTION, not even the people who fight for its availability. It is a gruesome procedure, just as anti-abortionists say, an ordeal for pregnant women as well as doctors. Indeed, it makes up a tiny number of the abortions performed in this country -- a fraction of 1%.

But in those rare cases, many doctors find that it is the safest method for late-term abortions, which are generally performed when the pregnant woman's health is threatened or the fetus will not survive after birth. Physicians say the procedure reduces risks for women with infections or other health problems.

Now the U.S. Supreme Court, which rejected a state law to ban the procedure in 2000, has agreed to review an almost identical federal law. The court's willingness to hear the case rightly fills the reproductive-rights crowd with dread.

The court struck down the state law, from Nebraska, because it provided no exception for cases in which the procedure might be needed to protect the mother's health. Then Congress took up the matter in 2003, decreeing that the procedure is never medically necessary to save the life or health of the mother. This congressional ban has been repeatedly declared unconstitutional by federal courts on the same grounds as the Nebraska law. It's natural to wonder why the Supreme Court found this case worthy of consideration.

One reason may be that the justices are willing to allow Congress' medical judgment to supersede that of doctors and their patients. This would truly be alarming. Another reason, just as disturbing, may be that the court's two most recent appointees -- especially its newest justice, Samuel A. Alito Jr. -- are eager to impose greater federal restrictions on abortion. Alito replaced Sandra Day O'Connor, a dependable vote for reproductive rights. He said during his confirmation hearings that he would show respect for "settled law," but he would not commit to putting the 1973 Roe vs. Wade decision, which established a woman's right to an abortion, in that category.

Alito also said good judges don't allow personal views to color their legal judgment. As a judge, he said, he would keep in mind rulings that have protected a woman's right to an abortion. This case is his chance to prove it.

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