February 21, 2006
By Stephen Henderson
Knight Ridder Newspapers

WASHINGTON - The Supreme Court set the stage for a major fall showdown over abortion Tuesday when the justices agreed to decide whether Congress can ban so-called partial-birth abortions nationwide.

It's not new territory for the court, which in 2000 split 5-4 when it struck down a similar state ban because it lacked a health exception for women.

But Justice Sandra Day O'Connor, who voted with the majority in that case, has been replaced by Justice Samuel Alito, whose views on abortion are widely expected to be more restrictive.

The case could be the first in which Alito, with other court conservatives including new Chief Justice John G. Roberts, helps chart a more restrictive trajectory for the court's handling of abortion laws.

The case doesn't directly address Roe v. Wade, the controversial 1973 ruling that struck down anti-abortion laws. But its outcome could indicate whether the court might allow limits on abortion that would affect the ease with which abortions can be obtained.

"Almost certainly on the table here is an awful lot more than the federal partial-birth ban," said David Garrow, a constitutional law expert who's written extensively about abortion.

Not only might the court eliminate the need for a health exception, Garrow said, but it also could reconsider case law that blocks the enforcement of abortion laws when any part of them is unconstitutional. Most other laws are nullified only if it's shown that they're wholly unconstitutional.

Partisans on both sides of the issue made it clear that they view the case as pivotal - and the court's new makeup as potentially decisive.

"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, the president of Planned Parenthood Federation of America, a national abortion-rights group. "Today's actions by the court are a shining example of why elections matter. When judges far outside the mainstream are nominated and confirmed to public office by anti-choice politicians, women's health and safety are put in danger."

Jay Sekulow, the chief counsel of the anti-abortion American Center for Law and Justice, welcomed the court's decision.

"With the new makeup of the high court, we are encouraged that the justices will determine that the government does have a vital and compelling interest in preventing the spread of the practice of abortion into infanticide," he said. "This is an incredibly important decision that puts the issue of partial-birth abortion front and center, making this gruesome procedure the next significant legal battleground in protecting human life."

The procedure at issue is one of the more contentious aspects of the abortion debate. The two sides disagree even on what to call it. Abortion rights advocates bristle at "partial-birth" or even "late-term" abortion, saying the procedure, which doctors call an intact dilation and extraction, is almost always restricted to instances in which it's medically necessary.

Abortion opponents prefer the more charged terms to highlight what they call the procedure's gruesome nature. It involves the killing of a fetus that's fully formed and, in some instances, partially delivered. "It's time that this barbaric procedure is barred once and for all," Sekulow said.

The court's decision to take the case is somewhat surprising, given the recent vintage of its 2000 ruling and the fact that three different courts of appeals agreed that the federal ban can't survive analysis under that decision.

At least four justices voted to revisit the issue, though it's not known whether Alito or Roberts was among them. Ultimately, the outcome may turn on whether either decides that respect for court precedent precludes such a quick turnaround in the law.

Neither Roberts nor Alito has much of a paper trail on abortion: Roberts never faced the issue as a judge; Alito saw fewer than five abortion cases during his 15 years on the appellate court, sometimes ruling in favor of restrictions and other times voting to strike them down.

Alito generally was accepting of broad abortion restrictions and went further than the Supreme Court was willing to go in Planned Parenthood v. Casey, the 1992 ruling that ultimately affirmed Roe v. Wade.

But he also voted to strike down a ban on the procedures that now are at issue, relying heavily on the 2000 high court precedent and criticizing a fellow judge who he thought hadn't taken that ruling seriously enough.

While serving as lawyers in the Reagan administration, Roberts and Alito wrote memos questioning the constitutional foundation for Roe v. Wade, which many court watchers took as a sign that they'd be more accepting of abortion restrictions.

But at their confirmation hearings, both spoke frequently about the importance of court precedents, including Roe v. Wade, and stability on the court. Both made it clear that they'd be far from eager to overturn Roe or Planned Parenthood v. Casey.

Garrow said the case at issue was miles away from Roe or Casey but still at the center of the abortion debate.

"This could very well be revolutionary," he said. "Because without touching either one of those decisions, it could substantively transform the ability of states to impose serious strictures on access to legal abortion."