Right To 'Preserve One's Health' At Stake In Supreme Court Case Concerning Federal Abortion Ban, Opinion Piece Says

The Department of Justice's appeal to uphold a federal law banning so-called "partial-birth" abortion and the Supreme Court precedent that is "[s]tanding in the government's way" are "not really about the contentious liberty to choose abortion" but "concern the fundamental right to preserve one's health," Randy Barnett, a professor of legal theory at Georgetown University Law School and author of "Restoring the Lost Constitution: The Presumption of Liberty," writes in a Wall Street Journal opinion piece (Barnett, Wall Street Journal, 12/9). President Bush signed the Partial-Birth Abortion Ban Act (S 3) into law in November 2003. The Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers filed lawsuits alleging that the law is unconstitutional because of the absence of an exception for procedures preformed to protect the health of the pregnant woman. In place of a health exception, the law includes a long "findings" section with medical evidence presented during congressional hearings that, according to supporters of the law, indicates the procedures banned by the law are never medically necessary. Federal judges in California, Nebraska and New York each issued temporary restraining orders to prevent enforcement of the ban, all of which were upheld by appellate courts. The Supreme Court last month heard oral arguments in two of the appeals, and the court is expected to rule on the case by July 2007 (Kaiser Daily Women's Health Policy Report, 11/9). The Supreme Court in deciding on DOJ's appeal and other similar cases will decide if Congress is "entitled to blind deference when a person's life and health is at stake" or if "the people themselves deserve deference when their choices are supported by state-licensed and regulated physicians and ... substantial medical authority," Barnett writes. Former President James Madison said the Ninth Amendment was added to the Constitution to affirm "'the just importance of other rights retained by the people,'" Barnett writes concluding, "We will soon learn whether the courts agree" (Wall Street Journal, 12/9).

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