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Justices accept another abortion case

Court expected to rule on pair of challenges in the fall

By Bill Mears
CNN

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Justice Samuel Alito could cast the deciding vote in a pair of key abortion cases.

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WASHINGTON (AP) -- The Supreme Court has accepted a second case testing the constitutionality of a federal law banning a specific, controversial late-term abortion procedure critics call "partial birth" abortion.

The cases could provide a judicial sea change, with the key vote perhaps coming from the high court's newest member, Justice Samuel Alito. He replaced Sandra Day O'Connor, who was a key swing vote for a quarter century upholding the basic right to abortion.

The views of Alito, a more conservative jurist, could prove crucial in the new debate. The justices agreed to decide the contentious issue this fall.

The new appeal comes from the Bush administration, which lost after a lawsuit filed by the reproductive rights group Planned Parenthood. A federal appeals court based in San Francisco threw out the federal Partial-Birth Abortion Act of 2003 as unconstitutional because it did not provide a health exception to pregnant women facing a medical emergency.

A similar ruling from a federal appeals court based in St. Louis reached similar conclusions.

The outcome of these latest challenges could turn on the legal weight given past rulings on the "health exception."

In states where such exceptions are allowed, the criteria include the possibility of severe blood loss, damage to vital organs or loss of fertility. Court briefs noted pregnant women having the procedure most often have their health threatened by cancer, heart disease, high blood pressure or risk of stroke.

Doctors would be given the discretion to recommend when the late-term procedure should be performed.

The federal law has never gone into effect, pending the outcome of more than three years of legal appeals.

The issue of late-term abortions is not new to the high court, and past precedence may be key when justices review the federal ban. In 2000, the justices threw out Nebraska's version banning the procedure.

Using an earlier legal standard, the court, divided 5-4, concluded the state law was an "undue burden" on women because it lacked the critical health exception.

Despite that ruling, the Republican-controlled Congress -- backed by the Bush White House -- passed its own version three years later.

Abortion rights groups object to the term "partial birth," and even "late-term abortion." Doctors call the procedure an intact dilation and extraction, or intact D and E.

Since the landmark 1973 Roe v. Wade decision legalizing abortion, various states have tried to place restrictions and exceptions on access to the procedure, prompting a string of high court "clarifications" over the years.

South Dakota in March passed a law that would ban abortion in nearly all cases -- except to protect the life of the mother. Voters in that state will decide the issue in a November referendum.

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