Decision to Hear Case May Signal New Direction for Supreme Court on Abortion Issue

Feb. 21, 2006 — -- Abortion rights advocates are alarmed by today's Supreme Court decision to hear a case on late-term abortions, as they believe it signals a desire by the high court to impose further restrictions on the right to abortion established in the court's 1973 Roe v. Wade decision.

At issue is a 2003 law that Congress passed that bans so-called partial-birth abortion. The law -- signed by President Bush -- never took effect after lower courts in Nebraska, California and New York struck it down because it lacked an exception for the mother's health.

The Bush administration has labeled partial-birth abortion "barbaric" and "inhumane" because the procedure punctures the fetus's skull to ease its removal from the womb. Critics of the federal law argue that the surgical procedure is the safest way to remove a fetus for women whose health is already at risk because of cancer or heart disease.

Six years ago the Supreme Court, in a 5-4 ruling, struck down a similar federal law that banned such abortions. Retired Justice Sandra Day O'Connor -- now replaced by Justice Samuel Alito -- provided the key swing vote because the Nebraska law lacked an exception to protect the health of the mother.

Assuming Chief Justice John Roberts votes as did his predecessor, William Rehnquist, to uphold such a law, then all eyes will focus on Alito, who has remained an enigma for court watchers because of his mixed record on abortion.

For example, in 1985 Alito wrote in a job application that the Constitution did not support a right to abortion. In his confirmation hearing, Alito testified that while he supported the principle of stare decisis, or respect for precedent, he refused to say that Roe v. Wade was entitled to any special protection. But as a 3rd Circuit federal appeals judge, Alito twice voted to strike down restrictions on abortion.

As a new addition to the Supreme Court, Alito could tip the balance in favor of Bush, who has clearly stated his opposition to abortion and his desire to appoint only "strict constructionists" to the court.