Partial-birth abortion case on High Court's fall docket

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WASHINGTON, D.C.  — The U.S. Supreme Court plans to hear the much-anticipated challenges to the federal Partial Birth Abortion Ban Act of 2003 on Nov. 8.

The law, enacted after justices struck down a Nebraska state ban in the 2000 case of Stenberg v. Carhart, attempted to address the deficiencies found by the high court in that high-profile case.

Before the federal ban could take effect, however, abortion advocates challenged its constitutionality in lawsuits brought in New York, Nebraska and California. In all three cases, federal courts struck down the law based on the Stenberg case.

The Supreme Court earlier this year announced it would consider the appeals in the Nebraska and California cases—and announced Aug. 17 those hearings would occur Nov. 8. The New York case has not yet reached the high court, but its ultimate resolution will be dictated by the decision of justices in the other two cases.

Bruce Hausknecht, judicial analyst for Focus on the Family Action, said pro-life groups are watching the appeals with anticipation.

"Although the 2000 Stenberg decision struck down a state ban with many similarities to the federal ban at issue now," he said, "the differences in the statutes, plus the replacement of Sandra Day O'Connor with Samuel Alito, give renewed hope for a different outcome this time."

O'Connor was the swing justice in the 5-4 vote in the 2000 case, Hausknecht said.

"Alito is more deferential to efforts by the legislative branch to regulate abortion than O'Connor was," he said. "Therefore, the decision just might come out 5-4 in favor of upholding the federal act.

"However, no one can be sure whether the court will address the ultimate question of constitutionality, or whether the cases might be decided on a narrower basis and sent back down for further consideration by the lower courts. That's why there will be so much interest in this case come November 8."