First a hearty "howdy" to the new blondes. Welcome!
Second, I realize that the topic has been covered but I already wrote this and a topic isn't covered until I have covered it, right?
Third, I am hunting and pecking because I am having problems with my wrists. Not carpal tunnel, but diabetic neuropathy. So bear with me.
The Supreme Court has agreed to hear a partial birth abortion ban case next fall. In the middle of campaign season. The Court probably granted certiorari in order to reverse the three appellate courts' ruling that banned the enforcement of the Partial Birth Abortion Ban Act of 2003. The Bush administration has appealed the appellate courts' decision that invalidated the federal law which denied doctors the ability to perform a medical procedure to terminate pregnancies in the second or third trimester. If doctors performed the procedure, they can be charged with a crime.
With the use of the word "ban" it is easy to be confused. Look at it this way: Bush v. Women's health. Bush wants to control women's health, the lower appellate courts want to protect women's health, and the Supreme Court that had once recognized a woman and her doctor's ability to protect her health, now believe that a woman's life must be endangered before her doctor can perform an abortion procedure to save her life. Abortion to protect her gynecological, reproductive, physical and or mental health isn't reason enough. So a woman must carry a fetus to term that endangers her health.
The Second, Eighth, and Ninth Circuit Courts of Appeal struck the act as unconstitutional because while the law in question before the Supreme Court provides an exception which allows the procedure in order to save a woman's life, but not in order to protect a woman's health. The Supreme Court six years ago recognized that any law regarding abortion must provide doctors with the ability to not only to save a woman's life, but to preserve her health. All three appellate courts issued an injunction which prevents enforcement of the medical procedure's ban.
The Bush administration is appealing the ban on the enforcement of the ban of partial birth abortion. Not to belabor the point, the federal appellate courts have declared the law banning partial birth abortion unconstitutional, upheld the health exemption recognized by previous abortion laws, and the Bush administration wants the federal law which denies a woman a medical procedure that will protect her health enforced. Bush wants to prosecute doctors who perform the procedure that preserves a woman's health.
The Court is revisiting its earlier 5-4 decision in which they declared a previous attempt to ban the procedure unconstitutional because it did not provide an exception to protect the health of the woman. Evidently the Court is going to rule that the current law is constitutional or they would have allowed the lower appellate courts' rulings to stand. Or perhaps since there is a split--where some circuits believe the law in unconstitutional and other circuits have not ruled on the federal law--the Court thinks it should lay down a ruling for all circuits. In other words, the Court may reverse itself because the votes are there to change reality. Justice O'Connor is gone. Therefore Justice Alito is there. Stare decisis is after all, not carved in stone. (Recall that if stare decisis was carved in stone, Plessy v. Ferguson would not have been overturned by Brown v. the Board of Education.) So Congress' finding that the procedure is unnecessary to preserve a woman's health but might be necessary to save her life will become law.
And you thought Bill Frist's diagnosis of Terry Schiavo without ever touching her was odd. Congress has made their interpretation of medicine law without the benefit of a medical education.
While the Court may not have the votes to declare abortion unconstitutional, they can continue to erode a woman's right to chose until they have reached the critical point where abortions cannot be performed unless the woman's life is at stake.
Since it takes four justices to vote to hear a case, Scalia and Thomas probably voted to hear the case since they ruled in favor of the law that banned the procedure six years ago. They vote to hear the case on other grounds than simply abortion. Rehnquist and Kennedy also voted in favor of banning the procedure. Kennedy has voted in the past to uphold a woman's right to choose in the past so he is something of a wild card. He objected six years ago not on the subject of abortion, but on states' rights to decide such matters.
Breyer, Stevens, Ginsberg, O'Connor, and Souter voted to declare the Partial Birth Abortion Ban unconstitutional because it had no health exception. O'Connor is gone. Roberts and Alito are here. Assuming that these remaining four justices stay with their previous ruling and Roberts, Alito, Scalia, Thomas, and Kennedy rule against the appellate courts, partial birth abortion will be an option only to save the life of the woman.