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Ranchers.net

Supreme Court Hears Arguments on Partial-Birth Abortion Ban
by Pete Winn, associate editor

The debate was highly technical, but the justices may be leaning toward upholding the law.

The U.S. Supreme Court heard oral arguments today concerning the partial-birth abortion ban that Congress passed in 2003.

Pro-abortion attorneys said they hoped the court would follow the lead of its 2000 Stenberg v. Carhart ruling that struck down Nebraska's partial-birth abortion ban.

"Only six years ago, the Supreme Court struck down a nearly identical ban because it endangered women," American Civil Liberties Union lawyer Louise Melling said today.

But pro-family legal experts say the court is not the same panel that ruled on Nebraska's ban, and they are hopeful it may reach a different conclusion on the federal law, which Congress specifically crafted to comply with that earlier ruling.

Chief Justice John Roberts and Justice Samuel Alito have since come onto the court. Alito replaced Justice Sandra Day O'Connor, who sided with the majority in the Nebraska case.

Jay Sekulow, chief counsel of the American Center for Law and Justice, said Justice Anthony Kennedy is likely to be the swing vote this time. Sekulow was in the courtroom for today's arguments.

"I think the whole case is down to Justice Kennedy," he said. "It's very clear where (Chief Justice) John Roberts was, and (Justice Samuel) Alito was very quiet, but I think it comes down to Kennedy."

Sekulow said the arguments went well for the pro-life side.

"I'm optimistic," he told CitizenLink. "Justice Kennedy asked questions similar to what he asked in the Stenberg case. He went down a similar line of questioning. But it was very clear to me that the answers given by the solicitor general satisfied his questions, and I think he's going to stick with his previous opinion. So I left the court very optimistic."

Realistically, however, Sekulow is making no predictions.

"I take nothing for granted, because things change," he said, "and these things go to conference."

U.S. Solicitor General Paul Clement argued on behalf of the law, telling justices that, far from "endangering women," lawmakers had relied on new scientific evidence in determining that partial-birth abortion should be banned — and that the court should defer to Congress, because it was within its realm to make the findings they did.

Focus on the Family Action Judicial Analyst Bruce Hausknecht said a casual observer would have been mystified by the highly technical arguments presented today.

"This was definitely an 'inside baseball' recap of every medical procedure surrounding the abortion and partial-birth abortion debate," he said. "In that context, it was almost alarming that the court has had to make itself an expert on such medical matters — on an issue that should have been left to the states and to their legislatures long ago."

Hausknecht said the court must consider whether the law should contain an exemption for occasions when the health of a mother is at stake — something Stenberg mentioned, but which Congress chose not to include. The "health" exception is often interpreted so broadly by the abortion industry it makes laws that include it meaningless.

Partial-birth abortion is a procedure in which a baby is partially delivered feet first, but instead of proceeding to deliver the baby and place it in its mother's waiting arms, the abortionist punctures the skull and sucks out the brain.

Hausknecht said the humanity of the preborn tended to be obscured in the
justices' deliberations.

"Unfortunately, the language of those legal arguments tends to get very clinical," he said, "with talk of 'fetuses' instead of babies, and 'disarticulation' instead of dismemberment, and strange verbiage like that, all to avoid having to say the painful words that the public would recognize as hideous and shameful with regard to slaughtering babies."

A decision is months away — perhaps in February.
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