Supreme Court Takes Up Partial Birth Abortion Case

Feb 21, 2006

Washington, D.C. - Today, the U.S. Supreme Court stepped into the abortion battle by agreeing to hear the case of Gonzales v. Carhart, which involves a challenge to the federal partial birth abortion law. The decision to hear the case comes as a result of Justice Alito's first conference on the High Court. Four votes are necessary to take up a case for review.

In 2000, the Supreme Court, by a 5-4 decision in Carhart v. Stenberg, struck down a law that banned partial birth abortion. Justice Sandra Day O'Connor was in the majority in that case. Had she still been on the bench, it is unlikely that that the Supreme Court would have voted to take up this new challenge. The more probable scenario would have been for the Court to deny review and allow the lower court decision to stand. The Eighth Circuit Court of Appeals struck down the new law which bans partial birth abortion under the prior precedent in Carhart v. Stenberg. Although it is speculative, for the Court to take the case of Gonzales v. Carhart, it is probable that at least five Justices believe that the outcome this time will be different. There is very little difference between the partial birth abortion statutes under review in the two cases. Ironically, Dr. Leroy Carhart, who performs partial birth abortions in Nebraska, is the same doctor who mounted challenges against both statutes.

Mathew D. Staver, President and General Counsel of Liberty Counsel, commented on the Court's action: "The pro-life community is thrilled with the Supreme Court's decision to step back into the partial birth abortion debate. Today marks the first action of the High Court in a new direction. I believe this Court will be more faithful to the rule of law. No matter how far you stretch the Constitution, you cannot find a right to abortion lurking anywhere within its shadows. Abortion is an extreme makeover of the Constitution and the rule of law. While the same doctor has challenged virtually the same law which bans partial birth abortion, we have a new Court and today is a different day."

Liberty Counsel will file a brief in support of the law which bans partial birth abortion.