Supreme Court To Consider Partial Birth Abortion

An order in the Federal Partial Birth Abortion case could come down from the Supreme Court this afternoon or on Monday. If the order were to come down this afternoon, it will almost certainly be a Grant to Review. If the Court order comes on Monday, it could either be a Grant or what is called a GVR. A GVR is a mechanism the Court utilizes to grant review, vacate the Lower Court opinion, which means to remove it, and to send the case back down for reconsideration. In light of the Supreme Courts unanimous decision in the Ayotte case involving parental notification that came out earlier this week, it is possible that the Partial Birth Abortion case is sent back down. This would be a win.

The fact that the Ayotte decision came down in our favor earlier this week supports the view that the Partial Birth Abortion case has been rescheduled because of that decision. Since Ayotte ruled that it is normally improper to invalidate a law in its entirety for want of a health exception, and since the Eighth Circuit did precisely that in Carhart, there is a very strong chance that the Supreme Court will grant, vacate, and remand in Carhart for further consideration in light of Ayotte. That will postpone ultimate review of the core issues in the case in Carhart, which will allow for Judge Alitos confirmation to have been completed. The Supreme Court declared the Nebraska Partial Birth Abortion law unconstitutional in a 5-4 vote. The swing vote in that case was Justice OConnor. Sam Alitos confirmation as an Associate Justice replacing Sandra Day OConnor would bode well for our legal position. If the case is remanded back down to the Eighth Circuit Court of Appeals, the American Center for Law and Justice will be filing briefs in the case on behalf of Members of Congress.

If the Court issues an order this afternoon we will update the site here. If the Court grants an order, we will update this report as soon as it is available.