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All eyes on Roberts court as it takes on abortion

By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- The morning after the closely fought midterm elections, the U.S. Supreme Court will hear its first major abortion case in six years.

The hot-button issue has been debated for years among social and religious activists, voters and judges themselves.

At issue in Wednesday's arguments is the constitutionality of a federal law banning a specific late-term procedure its critics call "partial-birth" abortion. (Watch a new Supreme Court meet an old hot-button issue -- 2:16 Video)

After Justice Samuel Alito replaced Sandra Day O'Connor this year, court watchers have been waiting for a pair of cases to signal whether the court is shifting to the right.

For a quarter of a century, O'Connor, the first woman on the high court, was a key swing vote upholding the basic right to abortion. The views of Alito, a more conservative jurist, could prove crucial in the new debate. So, too, could the views of moderate-conservative Justice Anthony Kennedy, who takes O'Connor's place as the key swing vote.

"This case will test how far the government can reasonably go in outlawing so-called 'partial birth' abortion," said Thomas Goldstein, a leading appellate attorney and Supreme Court legal analyst.

"But we'll be able to take the temperature of the justices based on their questions, the opinions they write, whether they've moved one more vote toward overruling Roe v. Wade," he added. "They may well be very close."

New justices, old issue

Even with Alito and Chief Justice John Roberts joining the bench in recent months, many legal scholars say the outcome is far from clear.

Three federal appeals courts have ruled against the government, saying the federal Partial Birth Abortion Ban Act of 2003 is unconstitutional because it does not provide a "health exception" for pregnant women facing a medical emergency.

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

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

In states where such exceptions are allowed, the lists of possible health risks include severe blood loss, damage to vital organs and 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 are given the discretion to recommend when the late-term procedure should be performed.

"This abortion ban would forbid doctors from providing their patients with the care they believe is safest and best, and would give Congress and states a green light to endanger women's health when they restrict women's access to abortion," said Eve Gartner, a senior staff attorney for Planned Parenthood Federation of America, who will appear before the justices.

Prior cases may carry weight

Many conservatives strongly disagree. "Partial-birth abortion really isn't abortion. It's killing a baby in the process of being born," said Tom Fitton of Judicial Watch. "I think conservatives are hopeful that the court will be more willing to allow further regulation."

The issue of late-term abortions is not new to the high court, and legal precedence may be key when justices review the federal ban.

In 2000, the justices threw out Nebraska's version outlawing the procedure. Using an earlier legal standard, a divided 5-4 court 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.

The Justice Department had urged the justices to accept the new case, saying the lower courts viewed the issue wrongly.

"That decision overrides Congress' carefully considered finding, following nine years of hearings and debates, that partial-birth abortion is never necessary to preserve a mother's health," said Solicitor General Paul Clement in a legal brief filed with the court. Clement will argue the government's side before the high court.

Debate focuses on numbers

Abortion-rights groups object to the term "partial birth" and even "late-term abortion," saying the procedure is done before the fetus is viable and is performed only in the second trimester, sometimes as early as 12 to 15 weeks after the start of pregnancy.

The federal law bans what doctors call "intact dilation and evacuation," which Congress in its legislation termed "gruesome and inhumane."

It is a rarely used second-trimester procedure, designed to reduce complications to the mother.

More common is "dilation and evacuation," used in 95 percent of pre-viability second-trimester abortions, according to Planned Parenthood. Both are generally performed after the 21st week of pregnancy.

About 1.4 percent of all abortions are believed to be performed after the 21st week, according to the latest numbers from the Centers for Disease Control and Prevention.

Comprehensive federal health statistics are not kept on a yearly basis. Conventional medical practice puts the earliest point of viability somewhere between the 24th and 28th weeks, although there have been rare earlier cases.

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" on the issue over the years.

Political, religious groups weigh in

The abortion question has become part of the political debate this election season.

Many religious groups have filed legal briefs backing the government and plan to gather supporters outside the Supreme Court during Wednesday's arguments.

"We're garnering names on a petition; so far we have well over a hundred thousand," said Dr. Gary Cass, director of the Center for Reclaiming America for Christ. "I think we've come a long way away from our God-given right to life that was secured for us by the Founders. And so we're going to petition the court."

On the other side, abortion rights groups protested the nominations of Alito and Roberts, fearing they would roll back women's rights.

"How does the court preserve its own institutional integrity where this is nothing other than a bold-faced attempt to get the court to change an earlier ruling when the only thing that's changed is the makeup of the court?" said Roger Evans, Planned Parenthood's senior director.

As far as the legal merits, a ruling could turn on the court's newest member.

"It may come down to Justice Alito and whether he is persuaded or not that it would be appropriate to allow the legislature to make some definitions with respect to the time or types of procedures of abortion," said Theodore Olson, former solicitor general in the Bush White House. "It's one that could be overturned."


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This week the Supreme Court hears its first major abortion case since John Roberts became chief justice.

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