Kaiser Daily Women’s Health Policy Report Summarizes Editorials On Federal Abortion Ban

Two recent editorials respond to opening arguments the Supreme Court heard on Wednesday in a Department of Justice appeal to uphold a federal law banning so-called “partial-birth” abortion. President Bush signed the Partial-Birth Abortion Ban Act (S 3) into law in November 2003 and several organizations subsequently filed lawsuits alleging that the law is unconstitutional because of the absence of an exception for procedures preformed to protect the health of the pregnant woman. The Supreme Court in the 2000 Stenberg v. Carhart case ruled 5-4 to strike down a similar Nebraska law because it did not include a health exception. In place of a health exception, the federal law includes a long “findings” section with medical evidence presented during congressional hearings that, according to supporters of the law, indicates the procedures banned by the law are never medically necessary. Federal judges in California, Nebraska and New York each issued temporary restraining orders to prevent enforcement of the ban, and the decisions were each upheld by appeals courts. The Supreme Court on Wednesday heard arguments for two of the cases, and the justices focused on the medical methods used in the procedures banned by the law and its health implications (Kaiser Daily Women’s Health Policy Report, 11/9). Summaries of the editorials appear below.

• New York Times: The Supreme Court “should strike down this far-reaching assault on reproductive freedom” to protect “women’s privacy and health” and to defend the “court’s own reputation,” a Times editorial says. Justices should be concerned that the law could “put women’s health at risk,” the editorial says, concluding, “They should also need to worry about how the court will look if the recent change in its membership produces starkly a different result on an issue so vital to women’s privacy and health” (New York Times, 11/11).
• Washington Post: The court should “honor its precedent” and apply its Stenberg ruling to its ruling on the federal ban, because the federal law is “materially identical” to the Nebraska law, a Post editorial says. Although DOJ says that the federal law can be upheld with the Stenberg decision still standing, the “only way to uphold this law is to overturn the prior decision — a step justices should not take in the interest of women’s health and out of respect for precedent,” according to the editorial. The Post adds that if the court declares the law unconstitutional, it “would send a powerful message of respect for the court’s institutional work” (Washington Post, 11/13).

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