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Justices tackle late-term abortion issue

By Bill Mears
Demonstrators marched on the Supreme Court to mark the 33rd anniversary of Roe v. Wade.



Supreme Court

WASHINGTON (CNN) -- The Supreme Court wasted little time jumping back into the contentious abortion issue, agreeing Tuesday to review the constitutionality of a federal law banning a controversial late-term procedure critics call "partial birth" abortion.

The case could provide a judicial sea change with new Justice Samuel Alito, who joined the high court January 31, replacing Sandra Day O'Connor.

O'Connor, the first woman on the high court, 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.

A federal appeals court had ruled against the government, saying the federal Partial-Birth Abortion Act of 2003 was unconstitutional because it did not provide a health exception to pregnant women facing a medical emergency.

'Health exception'

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

In states where such exceptions are allowed, they include the possibility of severe blood loss, damage to vital organs or loss of fertility. And 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 two years of legal appeals.

The issue of late-term abortions is not new to the high court, and earlier precedents could play a key role when the justices review the federal ban.

In 2000, the justices threw out Nebraska's version banning the "partial birth" procedure. Using an earlier legal standard, the court concluded 5-4 that 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.

'Act of hostility'

The Planned Parenthood Federation of America was quick to denounce the court's decision to hear the case, calling it "a dangerous act of hostility aimed squarely at women's health and safety."

"Despite 33 years of Supreme Court precedent that women's health matters, the court has decided it will once again take up this issue," Cecile Richards, the organization's president, said in a written statement.

"Health-care decisions should be made by women, with their doctors and families -- not politicians," Richards added. "Lawmakers should stop playing politics with women's health and lives."

Abortion rights groups object to the term "partial birth," and even "late-term abortion," saying the procedure is done before the fetus is viable.

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's state Senate plans to vote Wednesday on a controversial bill to ban abortion in nearly all cases -- except to protect the life of the mother.

The high court last month passed up a chance to issue a major ruling in a separate abortion-related case.

In a unanimous but narrow ruling written by O'Connor, the last opinion she authored, the court concluded that a federal appeals court went too far by blocking enforcement of a New Hampshire law requiring minors to notify their parents before receiving an abortion.

Justice Department urged review

On the federal late-term abortion law, the Justice Department urged the justices to accept the case, saying the lower courts viewed the issue incorrectly.

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

Abortion rights groups have been vocal on the issue, tying the case to last month's confirmation of Alito.

"Today's actions by the court are a shining example of why elections matter," Richards said in the Planned Parenthood statement. "When judges far outside the mainstream are nominated and confirmed to public office by anti-choice politicians, women's health and safety are put in the danger."

Planned Parenthood and other groups opposed Alito and launched an aggressive media blitz.

The federal late-term abortion case will likely be argued in the fall.

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