US bishops urge Supreme Court to uphold federal ban on partial-birth abortion

Washington D.C., May 23, 2006 / 22:00 pm

Joined by other church bodies, the United States Conference of Catholic Bishops (USCCB) urged the U.S. Supreme Court to reverse a lower court ruling which struck down the federal ban on partial-birth abortion.

The amici curiae brief was filed May 19 in the case of Alberto R. Gonzales, Attorney General, v. Leroy Carhart, et. al.

The brief argued that Stenberg v. Carhart does not control the outcome for the present case. In Stenberg v. Carhart, which was decided in 2000, the Supreme Court struck down a Nebraska statute prohibiting partial-birth abortions.

“First, federal law bans a different procedure,” says the brief. “Unlike the Nebraska law invalidated in Stenberg, the federal ban protects the life of an unborn child that is substantially outside his or her mother’s body at specified anatomical points.

“Second, Congress made factual findings that address the precise question whether an exception to the ban is necessary to protect the mother’s health,” it continues.

“Indeed, that this case involves a living child substantially outside his or her mother’s body places the challenged statute outside the scope of this Court’s abortion precedents,” the brief states.

“Roe v. Wade…did not decide the constitutionality of a ban on taking the life of a child in the process of being born…No subsequent decision of this Court, not even Stenberg, has considered the constitutionality of a ban on taking the life of a child substantially outside his or her mother’s body,” the brief points out.

“There is plainly no basis for saying that such conduct should enjoy constitutional protection,” the brief asserts.

“Congress could legitimately conclude, as it did here, that the challenged ban is necessary to preserve the distinction between abortion and infanticide and to prevent the latter,” it suggests.

The brief said the statute should be viewed as a permissible regulation that squares with the Court’s decision in the 1992 case Planned Parenthood v. Casey.

“Casey permits more regulation of abortion, not less, than had been permitted under previous decisions,” the brief notes. “The challenged ban does not prohibit a single abortion or impede access to abortion. It prohibits only a method of abortion.

“Congress found that this particular method of abortion was not medically necessary and, indeed, posed significant maternal health risks. Those factual findings are entitled to judicial deference here as in any other context,” the brief continues.

“To hold otherwise simply because this case involves abortion would inexplicably accord abortion a constitutional status not enjoyed even by interests the Constitution explicitly protects.”

According to the brief, the case also underscores several factors that compel re-examination of the Court’s abortion jurisprudence, including Roe v. Wade.

The brief was filed by the USCCB, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the International Church of the Foursquare Gospel, the Greek Orthodox Archdiocese of America, and the Lutheran Church-Missouri Synod.

It was submitted by Mark Chopko, USCCB General Counsel, and Michael Moses, Associate General Counsel.