BUTCH MABIN / Lincoln Journal Star | Posted: Tuesday, February 21, 2006 6:00 pm
Both sides in the battle over a late-term abortion law responded with guarded optimism to the U.S. Supreme Court’s decision Tuesday to review the law. Related: http://www.journalstar.com/resources/newsroom/flash_news/pbab/pbab.swf',%20'privacy',%20'width=400,%20height=330,%20scrollbars,%20resizable=no')"> Timeline of the case
The court said it would hear oral arguments in October over the law, struck down by a federal judge in Nebraska in 2004.
U.S. District Judge Richard G. Kopf of Lincoln was one of three trial judges across the country to declare the federal Partial Birth Abortion Ban Act unconstitutional because it did not include a health exception for women. The appeals courts for three circuits upheld the trial judges.
“I’m cautiously optimistic,” said Dave Bydalek, executive director of Family First. “The question is, how much deference are they (the court) going to give Congress with respect to the law.”
Priscilla Smith, director of the Domestic Legal Program at the Center for Reproductive Rights in New York, said the Supreme Court often declines to take cases when the circuit courts are in agreement.
She said, however, the high court may have decided to hear the Nebraska case because it involved a law passed by Congress.
The Center for Reproductive Rights represented Bellevue doctor LeRoy Carhart and several other physicians in their challenge of the act that was heard by Judge Kopf.
“Who knows for sure why the court takes cases,” Smith said. “But they will often take a case that involves the striking down of a law of Congress.”
She said the Supreme Court’s reversal of the lower courts “would be very radical,” especially in light of the court’s earlier ruling that struck down a similar Nebraska law.
“I’m trying to remain optimistic,” she said.
Congress passed the Partial Birth Abortion Ban in 2003, but opponents quickly challenged it in federal courts in Nebraska, New York and California.
The law sought to ban a late-term abortion procedure that some observers said was similar to a rarely used procedure called dilation and extraction, or D&X. D&X involves delivery of the fetus outside the mother and then the puncturing or collapsing of its head.
Supporters of the ban said it was not only barbaric but never medically necessary to protect a mother’s health.
Opponents of the ban said it outlawed what can be the safest procedure for late-term abortions. They also said the ban, as written, outlawed other abortion methods.
The federal ban was similar to a Nebraska law challenged by Carhart and struck down by the Supreme Court in a 5-4 ruling in 2000.
Creighton University law professor Colin Mangrum said Tuesday Congress was mindful of the 2000 Nebraska ruling when it crafted the 2003 act.
He said federal lawmakers attempted to refine the definition of the procedure so that other methods were not inadvertently outlawed by the act. Also, he said, Congress relied on expert testimony that partial-birth abortions were never medically necessary in deciding not to include a health exception in the act.
The 8th U.S. Circuit Court of Appeals, in affirming Kopf, said the act was flawed because it did not include a health exception. The 2nd Circuit Court, based in New York, reached the same conclusion. The 9th Circuit Court in California said the act was too broad and vague and needed the health exception.
Mangrum said the Supreme Court might want to clarify the 2000 Nebraska ruling, which he called “fractured.” Or it might want to better define the meaning of women’s health in abortion law, he said.
“The easiest thing for them to do is duck the issue,” he said. “They could be saying, we’re just going to make it clearer.”
But he said the recent additions of two new justices could result in a more substantial ruling.
Samuel Alito last month replaced Justice Sandra Day O’Connor, the swing vote in the Nebraska case. Alito’s appointment was preceded by that of John Roberts, who replaced the late William H. Rehnquist late last year.
A former appeals court judge, Alito has been more willing than O’Connor to allow restrictions on abortions, The Associated Press reported Tuesday.
“One of the interesting things, you have two new justices,” Mangrum said. “Who knows how they’re going to vote.”
Bydalek agreed that predicting votes is difficult. He said he hoped Alito and Roberts would vote to uphold the ban. “(But) you never know what the justices are going to do.”
He said the final ruling in the case would not have a direct bearing on Roe v. Wade, the 1973 decision that legalized abortions.
“I don’t see Roe implicated here,” he said. “It’s not directly an issue at all.”
Said Smith of Reproductive Rights: “It will not affect the bottom line of Roe. But it certainly could affect a pillar of Roe: women’s health.”
Reach Butch Mabin at 473-7234 or bmabin@journalstar.com.