Supreme Court to Consider Partial Birth Abortion Ban

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The Supreme Court announced today that it will hear a challenge to the Partial Birth Abortion Ban passed by Congress in 2003:

The law, the Partial Birth Abortion Act, was passed in 2003 but was immediately challenged in court and has never taken effect. It was ruled unconstitutional by three federal appeals courts in the last year, in rulings based on a Supreme Court decision in 2000 striking down a similar law passed in Nebraska.

In that case, Stenberg v. Carhart, a 5-to-4 majority that included the now-retired Justice Sandra Day O’Connor found that any abortion ban must include an exception for the health of the woman. Justice Alito was sworn in three weeks ago as Justice O’Connor’s successor after a rancorous confirmation process that focused heavily on the question of abortion. The case accepted by the court today does not involve a challenge to the core ruling that established a legal right to abortion, Roe v. Wade. But it is certain to rekindle questions of whether the court in the post-O’Connor era will be more sympathetic to efforts to limit abortion rights.

The Times muddles the issue a bit here, partly because “partial birth abortion” is a vague term that gets used in a lot of different contexts. Most of the public, I would imagine, thinks that “partial birth abortion” refers to a late-term abortion on an otherwise viable fetus—primarily, an abortion in the third trimester. Opponents of this sort of thing argue that the baby is basically being birthed and then killed, and most people probably have something like this in mind when they tell pollsters that they oppose “partial birth abortion.”

But very often “partial birth abortion” is used instead to refer to intact dilation & extraction (D&X), a medical procedure that’s most often carried out in the second trimester (and sometimes even the first trimester), rather than the third. So laws that ban this procedure can end up banning far, far more than the common understanding of “partial birth abortion.” In fact, as Jessica of Feministing points out, these sorts of laws can be so vague that in 1998, Wisconsin doctors refused to perform any abortions whatsoever after a (totally unconstitutional) D&X ban was passed by the state legislature and upheld by state courts. They just couldn’t figure out what was being banned and what wasn’t, and didn’t want to risk prosecution.

Congress’ 2003 law most resembles the Wisconsin law—mostly notably, the ban isn’t limited to late-term or post-viability abortions—and even goes a bit further, banning procedures besides D&X. It goes far beyond “partial birth.” (Law professor Jack Balkin had a longer discussion of these vagueness problems back in 2003.) Not only that, but it makes no exceptions for the health of the mother, which is, presumably, the main issue the Supreme Court will discuss. But if the law is upheld, it wouldn’t be surprising if, in some states, it had the exact same effect that the Wisconsin partial birth abortion ban had. Not to mention the fact that it will make abortions even more difficult—or outright impossible—for many poorer women, who are often deterred by various state laws from getting access to abortions until later on in their pregnancies. And no doubt that’s exactly what Roberts and Alito are after.

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