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National NOW Times >> Winter 2007  >> Article

Supreme Court Hears Cases That Could Ban Abortion Procedures

By Lisa Bennett, Communications Director

NOW staffer, Rose Afriyie, marches with other activists outside the Supreme Court in the rain during the oral arguments.

NOW staff photo by Holly Anne Manning

NOW staffer, Rose Afriyie, marches with other activists outside the Supreme Court in the rain during the oral arguments.

In the first year of his second term, George W. Bush nominated a new chief justice and a new associate justice to the United States Supreme Court. A Republican-led Senate confirmed both Bush nominees despite a huge outcry from NOW and other groups concerned with the threat posed to women's rights and civil liberties by the record and ideology of both men.

Now, this reconfigured court is considering the constitutionality of the nation's first abortion procedures ban — a ban enacted by Bush and his cronies in Congress.

"This demonstrates perfectly why voters were right to loosen the right-wing's monopoly over our government," said NOW President Kim Gandy. "Bush used his allies' control in Congress to push through anti-abortion legislation, and he used their power to confirm anti-abortion justices to the Supreme Court — justices who are likely to vote to uphold that very legislation."

On Nov. 8, just one day after the midterm elections, the Supreme Court heard oral arguments in Gonzales v. Carhart and Gonzales v. Planned Parenthood . Both cases address the deceptively-named "partial-birth abortion" ban that Bush signed into law on Nov. 5, 2003, while surrounded by an all-male group of grinning legislators.

The law bans the most common abortion procedure used after 12 weeks of pregnancy, and has no exception to allow its use if the woman's health is in danger.

One of the two cases, Gonzales v. Carhart , concerns the same doctor, the same state, and the same issues as did Stenberg v. Carhart in 2000, when Dr. Leroy Carhart challenged a Nebraska state law that banned certain vaguely-defined abortion procedures without including any exception for a woman whose health is at risk.

That Nebraska law, which was identical in effect to the federal ban, was struck down by the Supreme Court in 2000. Because the two bans are so similar, the Court's two newest members — Chief Justice John Roberts and Associate Justice Samuel Alito — will soon demonstrate whether they are committed to settled law, as they claimed during their confirmation hearings, or whether their documented opposition to abortion will lead them to overturn a clear precedent after only six years.

Although the Court's narrow 5-4 opinion in that 2000 case found the Nebraska law unconstitutional, the outcome in these new cases could be different without retired Justice Sandra Day O'Connor on the bench. O'Connor, who had cast the deciding vote in the Nebraska case, was replaced in 2006 by reproductive rights opponent Samuel Alito.

The precedent set by Stenberg in 2000 was the reason three federal appeals courts declared the federal ban unconstitutional. But the Bush administration pressed on with appeals to the Supreme Court by Attorney General Alberto Gonzales.

Gandy attended the oral arguments and reported that the justices' questions focused primarily on the ban's lack of a health exception and the validity of the Congressional "finding" that the procedure is never needed to protect the woman's health.

Justice Anthony Kennedy — who many believe is taking O'Connor's place as the court's swing vote — asked about medical evidence presented at trial that the banned procedures may indeed be the best option for protecting a woman's health under certain circumstances. Kennedy noted that such evidence had been lacking in Stenberg , perhaps by way of explaining his dissenting vote in that case.

"This isn't the first time Congress has tried to practice medicine without a license," said Gandy. "But if this ban is upheld, it will be the first time the Supreme Court has allowed them to do so."

The court's ruling, which could come any time between now and July, could signal the eventual fate of Roe v. Wade . If the Supreme Court hands the right wing a win, the new Congress must be prepared to hold back any further attempts to chip away at Roe and, better yet, enact legislation that will insure, once and for all, legal and safe abortion in the United States.

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