WASHINGTON - November 8 - Just one day after millions of women and men cast their votes to
determine the direction of this country, nine Supreme Court justices
will consider the constitutionality of the United States' first
abortion procedures ban -- a ban enacted by the Bush administration
and its friends in Congress.
On Wednesday, Nov. 8, the Supreme Court will hear oral arguments
in Gonzales v. Carhart and Gonzales v. Planned
Parenthood. Both cases address the deceptively-named "partial
birth abortion" ban that George W. Bush signed into law on Nov. 5,
2003, while surrounded by a group of grinning legislators -- not one
of them a woman.
A Nebraska law identical in effect to the federal ban was struck
down by the Supreme Court in 2000 because it didn't protect women's
health. Soon we will learn whether the court's two newest members --
Chief Justice John Roberts and Associate Justice Samuel Alito -- are
as devoted to precedent as they say they are, or whether their
visceral opposition to abortion will lead them to overturn a clear
precedent after only six years.
One of the cases, Gonzales v. Carhart, concerns the same
doctor, the same state, and the same issues as did Stenberg v.
Carhart in 2000, when Dr. Leroy Carhart challenged a Nebraska
law that banned certain vaguely-defined abortion procedures without
including any exception for a woman whose health is at risk.
The Court's narrow 5-4 opinion in that 2000 case found the law
unconstitutional. The outcome in the cases being argued this week
could be different without retired Justice Sandra Day O'Connor on
the bench. O'Connor cast the deciding vote in the Nebraska case and
was replaced earlier this year by abortion opponent Alito.
The precedent set by Stenberg in 2000 was the reason
three federal appeals courts declared the federal ban
unconstitutional as well. But the Bush administration has pressed on
with appeals to the Supreme Court by Attorney General Alberto
Not only will we find out whether our new justices are committed
to "stare decisis" and settled law -- as Roberts and Alito assured
senators they were -- but we will also see whether their opposition
to abortion means they will force physicians to violate their
Hippocratic oath, putting the desire of conservatives in Congress to
control women's bodies above a doctor's medical duty to put their
patients' health first.
This isn't the first time Congress has tried to practice medicine
without a license, but if this ban is upheld, it will be the first
time the Supreme Court has allowed them to do so. The court's line
of questioning on Nov. 8, and its eventual ruling on the federal
abortion procedures ban, could signal the fate of women's
reproductive rights in the United