Several Arguments In Briefs Of Appeal Of Federal Abortion Ban Addressed To Justice Kennedy

Numerous arguments in the briefs filed with the U.S. Supreme Court for a Department of Justice appeal to uphold a federal law banning so-called "partial-birth" abortion are "clearly, if implicitly, addressed" to Justice Anthony Kennedy, the New York Times reports (Greenhouse, New York Times, 11/5). 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 a health exception, and federal judges in California, Nebraska and New York each issued temporary restraining orders to prevent enforcement of the ban. 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. The Supreme Court is scheduled to hear arguments in two of the cases on Wednesday (Kaiser Daily Women's Health Policy Report, 10/30).

Kennedy's Role
Kennedy dissented in the Supreme Court's 5-4 ruling in the 2000 Stenberg v. Carhart case, which struck down a Nebraska law similar to Partial-Birth Abortion Ban Act as unconstitutional. However, a federal abortion restriction runs counter to Kennedy's view of federalism and states' rights, and he could stick to his belief that the court's precedents should be upheld, which likely would mean the federal abortion ban would be struck down (Kaiser Daily Women's Health Policy Report, 10/2). According to the Times, many people involved with groups challenging the law believe "their only hope of prevailing" is if they can persuade Kennedy to rule the federal law unconstitutional (New York Times, 11/5). CRR attorney Priscilla Smith said she thinks Kennedy might be convinced by evidence including the testimony of 13 medical experts saying the procedures banned by the law can be the safest method of abortion. Jay Sekulow, chief council for the American Center for Law and Justice, said, "There is not a lot of wriggle room in what Kennedy wrote" in his Sternberg dissent, adding, "It was such a powerful dissent. I don't see him moving away from that" (Sherman, AP/Detroit Free Press, 11/5). Andrew Koppelman, a professor of law and political science at Northwestern University, said how Chief Justice John Roberts will rule on the appeal "is the biggest question mark, because his views aren't particularly on record" (Peres, Chicago Tribune, 11/6).

Editorial
If the Supreme Court upholds the federal law and overturns the Sternberg ruling, it "wouldn't cause the same jolt as repudiating" Roe v. Wade -- the 1973 ruling that effectively barred state abortion bans -- or Planned Parenthood v. Casey, the 1992 ruling that reaffirmed Roe, a Los Angeles Times editorial says. However, upholding the law "would still upend a precedent and interfere with the settled expectations of women and doctors about the availability of this procedure as a medical last resort," according to the editorial (Los Angeles Times, 11/6).

NPR's "All Things Considered" on Thursday reported on the appeal of the federal abortion ban. The segment includes comments from Rep. Steve Chabot (R-Ohio), who helped write the Partial-Birth Abortion Ban Act, and Stephen Chasen, an associate professor of obstetrics and gynecology at Weill Medical College of Cornell University and plaintiff in one of three lawsuits challenging the ban (Rovner, "All Things Considered," NPR, 11/2). A transcript and audio of the segment are available online.


"Reprinted with permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation . © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.