Advancing Sexual and Reproductive Health and Rights
 
The Guttmacher Report on Public Policy
June 2000, Volume 3, Number 3
 
For the Record

'Partial-Birth' Ban Advances in Congress As Court Mulls Legality

Congress, once again, is poised to send President William J. Clinton legislation banning "partial-birth" abortion just as the U.S. Supreme Court is about to render an opinion on the constitutionality of doing so. On April 5, the House of Representa-tives passed ban legislation, for the third time since 1995, by a veto-proof margin of 287-141. Last October, the Senate passed a virtually identical bill by a vote of 63-34, which is just short of the two-thirds majority necessary to override the guaranteed presidential veto.

Only a few weeks after the House vote, on April 25, the Supreme Court heard oral arguments in Stenberg v. Carhart, a case involving Nebraska's 1999 law criminalizing "partial-birth" abortions. On behalf of abortion provider LeRoy H. Carhart, Simon Heller of the Center for Reproductive Law and Policy asserted that the law is unconstitutionally vague in what it aims to ban, places an undue burden on a woman's right to choose and fails to provide constitutionally mandated exceptions to protect the woman's health as well as her life. The Clinton administration, 80 members of Congress, the states of New York, Oregon, Maine and Vermont and numerous organizations committed to women's health, equality and reproductive rights filed "friend of the court" briefs in support of that view. Arguing for Nebraska, Attorney General Don Stenberg (R) asserted that the state was not interpreting the law to ban anything other than intact dilation and extraction procedures and that was a reasonable interpretation that the Court should accept. He also stated that the law served the state's interest in "drawing a bright line between infanticide and abortion."

Republican congressional leaders apparently were in a hurry to have an extended debate and pass a "partial-birth" bill just before the Supreme Court argument, but they have yet to take the minor procedural steps necessary to actually forward the legislation to the president. At this point, it is likely that the next move will be the Supreme Court's; its decision is expected by the end of June. Clearly, the Court's action will have important and direct legal ramifications in the 31 states that have enacted essentially the same laws, including New Mexico just this year (see related story, page 9). It doubtless will have political ramifications as well—for the pending federal legislation and for the November elections from the presidential level on down.