Bishops’ Conference Urges Supreme Court To Uphold Federal Ban On Partial-Birth Abortion

From the USCCB's Office of Media Relations:

WASHINGTON (May 23, 2006)— Joined by other church bodies, the United States Conference of Catholic Bishops (USCCB) urged the United States Supreme Court to reverse a lower court ruling which struck down the federal ban on partial-birth abortion.

The amici curiae brief was filed (May 19) in the case of Alberto R. Gonzales, Attorney General, v. Leroy Carhart, et. al.

The brief argued that Stenberg v. Carhart, the 2000 case in which the Supreme Court struck down a Nebraska statute prohibiting partial-birth abortions, does not control the outcome of the present case because the statutes differ in two crucial respects.

“First, federal law bans a different procedure. Unlike the Nebraska law invalidated in Stenberg, the federal ban protects the life of an unborn child that is substantially outside his or her mother’s body at specified anatomical points,” the brief said. “Second, Congress made factual findings that address the precise question whether an exception to the ban is necessary to protect the mother’s health.”

“Indeed, that this case involves a living child substantially outside his or her mother’s body places the challenged statute outside the scope of this Court’s abortion precedents,” the brief continued. “Roe v. Wade…did not decide the constitutionality of a ban on taking the life of a child in the process of being born…No subsequent decision of this Court, not even Stenberg, has considered the constitutionality of a ban on taking the life of a child substantially outside his or her mother’s body. There is plainly no basis for saying that such conduct should enjoy constitutional protection. Congress could legitimately conclude, as it did here, that the challenged ban is necessary to preserve the distinction between abortion and infanticide and to prevent the latter.”

The brief said the statute should be viewed as a permissible regulation that squares with the Court’s decision in the 1992 case Planned Parenthood v. Casey. “Casey permits more regulation of abortion, not less, than had been permitted under previous decisions,” the brief noted. “The challenged ban does not prohibit a single abortion or impede access to abortion. It prohibits only a method of abortion. Congress found that this particular method of abortion was not medically necessary and, indeed, posed significant maternal health risks. Those factual findings are entitled to judicial deference here as in any other context. To hold otherwise simply because this case involves abortion would inexplicably accord abortion a constitutional status not enjoyed even by interests the Constitution explicitly protects.”

According to the brief, the case underscores several factors that compel re-examination of the Court’s abortion jurisprudence.

“First, the ongoing supervisory role that this Court has assumed in abortion disputes continues to be a source of division and unpredictability for the other two branches of government.”

“Second, a large number of respected scholars and legal commentators on both sides of the abortion question view Roe as indefensible on its original terms. The wide-ranging and continuing search by abortion proponents, and even members of this Court, for an alternative legal justification for that decision is itself a sign that abortion policy is best suited to the legislative branch, not a matter of constitutional interpretation.”

“Third, Roe impedes an essential function of government by forbidding it to restrain private killing. The result has been a catastrophic loss of innocent human life.”

“Fourth, the factual assumptions underlying Roe are now disputed with evidence not available to this Court at the time Roe was decided.”

“On all four counts, the error of Roe, a decision already partly overruled in Casey, needs to be more fully and explicitly acknowledged and corrected,” the brief asserted.

The brief was filed by the USCCB, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the International Church of the Foursquare Gospel, the Greek Orthodox Archdiocese of America, and the Lutheran Church-Missouri Synod.

It was submitted by Mark E. Chopko, USCCB General Counsel, and Michael F. Moses, Associate General Counsel.

My Comments:
This case will pretty much come down to (1) whether Bush's nominees - Roberts and Alito - are what we hope they are and (2) whether Anthony Kennedy sticks with the position he took in Carhart to uphold the ban, or decides that stare decisis is suddenly important again and votes to strike down the ban.

Yeah, I know. It sucks having to rely on Anthony Kennedy to do the right thing.