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November 6 , 2006
Abortion cases will signal court direction, says Emory's Schapiro

BY elaine justice

On Nov. 8, the U.S. Supreme Court will hear arguments in two cases concerning the constitutionality of the federal Partial-Birth Abortion Ban Act, enacted by Congress in 2003.

“These cases will offer significant insight into how willing the Roberts court will be to jettison the decisions of the past and chart a new, more conservative course, unburdened by the weight of prior authority,” Emory constitutional law expert Robert Schapiro said.

The Partial-Birth Abortion Ban Act closely follows the provisions of a Nebraska statute struck down by the court in Stenberg v. Carhart in 2000, Schapiro said. “Like the Nebraska statute, the federal law contains no exception for instances in which the procedure is necessary to protect the health of the mother and defines ‘partial-birth’ abortion broadly, potentially including a wide range of abortion procedures used later in pregnancy.”

In the Nebraska case, the Supreme Court held that each of these elements rendered the statute unconstitutional, Schapiro said. “The federal act contains findings by Congress that a partial-birth abortion is never necessary to preserve a mother’s health. In Stenberg, though, the Supreme Court refused to credit such legislative findings, and this court generally has not shown deference to Congress on constitutional issues.”

In the Nebraska case, the court split 5–4, with Justice Sandra Day O’Connor providing the crucial fifth vote, Schapiro said. “With Justice Samuel Alito replacing Justice O’Connor, that decision may no longer have majority support. The new court could rely on the precedent to strike down the federal statute, or it could revisit the issue and overrule the Stenberg v. Carhart precedent.”

A third option also is available, he added. “Following a path suggested in Justice O’Connor’s last opinion for the court in Ayotte v. Planned Parenthood, the court could hold that the statue is unconstitutional in certain contexts,” Schapiro said. “Rather than striking down the whole statute, such a decision would leave the law applicable in situations in which the ban is applied narrowly to certain procedures and in situations in which the procedure is not necessary to preserve the mother’s health.

“Under this third option, the court would not overrule the prior precedent, but would apply it very narrowly,” he said. “Such an approach would place an added burden on those seeking to challenge abortion restrictions.”

Whatever the court decides to do — whether follow, overrule, or narrow prior precedent — “these cases will help to define how the Roberts court approaches prior rulings that no longer enjoy majority support among the current justices,” Schapiro said.

The cases to be considered are Gonzales v. Carhart and Gonzales v. Planned Parenthood.

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