New justices, old issue

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ON WEDNESDAY, while pundits will be busy analyzing election results, the U.S. Supreme Court will hear arguments in an emotionally charged case likely to reverberate in future political campaigns. At issue is a federal law that prohibits a controversial abortion method without making an exception for when the procedure is necessary to protect a woman’s health. If law and not politics guide the justices, they will declare this blanket ban unconstitutional.

Opponents call this procedure, performed in the second or third trimester, “partial-birth abortion.” Neutral commentators use the term “dilation and extraction.” Whatever you call it, the procedure is extraordinarily rare and distasteful even to many supporters of abortion rights. It involves a physician partially extracting a fetus from the uterus into the birth canal, where he then collapses the skull by suctioning its contents.

By large majorities in both houses, Congress banned this procedure in 2003. That might have been an acceptable exercise of congressional power if the legislation had also contained an exception to protect the mother’s health, a concern that the Supreme Court emphasized as early as 1973 in its landmark Roe vs. Wade decision.


Yet Congress rejected any exceptions even though the Supreme Court in 2000 had struck down a Nebraska partial-birth law precisely because it lacked one.

Given the high court’s insistence on a health exception, why would the bill’s supporters think that the justices might sustain a similar federal statute? One answer is that Congress “did the math.” The decision in the Nebraska case was 5 to 4, so supporters gambled that one or more justices in that majority would have left the court by the time the new law came before it.

Indeed, Justice Sandra Day O’Connor, who was in the majority in the Nebraska case, retired and has been replaced by Justice Samuel A. Alito Jr. If Alito were to vote to uphold the federal partial-birth ban, the deciding vote might be cast by Chief Justice John G. Roberts Jr. His predecessor, the late William H. Rehnquist, dissented in the Nebraska case, as he had done in a string of abortion rulings going back to Roe vs. Wade.

Like Alito, the chief justice is a conservative who is widely assumed to believe that Roe vs. Wade was wrongly decided. But, as Roberts noted during his Senate confirmation hearings, Roe not only remains on the books but has been reaffirmed in the court’s 1992 Casey vs. Planned Parenthood ruling. “It is a jolt to the legal system when you overrule a precedent,” Roberts told the Senate Judiciary Committee.

Reversing its 2000 decision on partial-birth laws wouldn’t cause the same jolt as repudiating Roe or Casey. But it would still upend a precedent and interfere with the settled expectations of women and doctors alike about the availability of this procedure as a medical last resort.

By Roberts’ own reasoning, the court should stand fast.