U.S. reopens abortion debate

PAUL KORING
From Wednesday's Globe and Mail
Washington — Newly reshaped by two conservative appointees, the U.S. Supreme Court plunged into the politically charged abortion debate yesterday, announcing it would review the controversial issue of so-called partial-birth abortions.

Groups who oppose abortion rights hailed the announcement, hoping it would signal a new era in which President George W. Bush's conservative appointees would tip the top court's balance and reverse the 1973 landmark Roe v. Wade abortion-rights case that cleaved the United States in bitter and divisive debate for decades.

Organizations that support abortion rights voiced outrage at this court's decision to examine the constitutionality of an existing ban on so-called partial-birth abortions, in part because the 2003 ban, which has never gone into effect, does not permit an exception to protect the health of a pregnant woman.

“The Supreme Court's decision to hear this case is a dangerous act of hostility aimed squarely at women's health and safety,” said Cecile Richards, president of the Planned Parenthood Federation of America. “Despite 33 years of Supreme Court precedent that women's health matters, the court has decided it will once again take up this issue.”

Activists who oppose abortion rights are hoping Mr. Bush's choice of two conservative, white, middle-aged male jurists — John Roberts, the court's new Chief Justice, and Samuel Alito, who replaced the centrist, swing-voter Sandra Day O'Connor — will herald the end to all legal forms of abortion in the United States.

Conservative and especially conservative Christian groups have been waiting for yesterday's momentous decision, even though the case under review doesn't directly address Roe v. Wade.

The announcement was made on Justice Alito's first day on the bench, three weeks after the U.S. Senate confirmed his nomination.

“The abortion industry has to be trembling in its boots,” Randall Terry, president of the Society for Truth and Justice, a Christian group that opposes abortion rights, said in a statement.

However, despite their conservative credentials and the fears of pro-choice groups, it remains unclear whether Mr. Bush's two new judicial appointees will be as reliably opposed to abortion rights as many expect them to be.

In at least two lower-court case rulings, Justice Alito upheld the legality of abortion. In his nomination hearing, he repeatedly asserted that he was not bound by any dogma. Both he and Chief Justice Roberts stressed the importance of precedent, although neither have specifically said whether they regarded Roe v. Wade as firmly settled law.

The 2003 ban on so-called partial-birth abortions has been contentious since it was passed. Abortion-rights advocates say it is overly broad and leaves women's health endangered.

Anti-abortion-rights groups say that prohibiting the late-term procedure is a vital first step in banning all terminations.

Although his predecessor, Bill Clinton, had refused to sign a similar bill, Mr. Bush enthusiastically supported the ban. “It will end an abhorrent practice and continue to build a culture of life in America,” he said.

At the 2003 signing of what many regard as the most sweeping abortion-related law in decades, Mr. Bush told groups opposed to abortion rights that a victory had been won.

“For years, a terrible form of violence has been directed against children who are inches from birth while the law looked the other way,” said Mr. Bush.

He added that “the American people and our government have confronted the violence and come to the defence of the innocent child.”

But the ban immediately faced legal challenges and never went into effect. It was ruled unconstitutional in several states, largely on the basis of a 5-4 Supreme Court ruling in 2000 asserting that all abortion laws must contain provisions to protect a woman's health.

Former justice O'Connor was the swing vote in that ruling.

As the court prepares to examine the constitutionality of the 2003 ban, at least some of the conservative justices have left no doubt about their position.

“This method of killing a human child — one cannot even accurately say an entirely unborn human child — proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion,” Justice Antonin Scalia wrote in an earlier dissent.

At least six federal courts around the United States have ruled that the 2003 ban was unconstitutional, but 15 state governments are backing the Justice Department's appeal to the Supreme Court.

The Partial-Birth Abortion Ban Act prohibits one type of abortion, usually carried out in later stages of pregnancy. The surgical procedure involves partly removing the fetus from the womb and then puncturing or crushing the skull.

Some doctors say that because the procedure minimizes the risk of infection and bleeding, it is the safest way to terminate a pregnancy.