ABC News - Supreme Court Will Be Tested as it Looks at Restricting Abortion Rights in Late-Term Abortion Cases

November 5, 2006

By MANUEL MEDRANO and ELIZABETH STUART

NEW YORK, Nov. 5, 2006  On Wednesday, the Supreme Court takes up the most highly charged issue on the docket for this year -- the procedure critics call "partial birth" abortion. This is the case activists on both sides of the issue have been waiting and worrying over.

It is the first time the court has considered abortion since President Bush's two new conservative appointees, Samuel Alito and John Roberts, were seated.

For Ilene Jaroslaw, a New York attorney, the issue is personal. She once got the news every pregnant woman dreads -- the baby she was carrying was severely deformed and would not survive.

"Part of the brain was missing, part of the skull was missing and this baby had a very grim prognosis," she says. "It was just a hopeless situation, and it became quite clear for our family that what we had to do is end this pregnancy, heal, and then later begin anew."

That meant having a rare late-term abortion. There is no precise data for how many late-term abortions are performed. Estimates range from 2,200 to 5,000 per year, less than two percent of all abortions.

The procedure can involve partially delivering a living fetus. Jay Sekulow of the American Center for Law and Justice calls it "gruesome."

"Many people consider it to be infanticide," Sekulow says, "and I think Congress was well within its authority to say we're not allowing this procedure to go forward."

Abortion rights supporters say choosing which procedure is appropriate for a particular patient is a medical decision, and doctors, not politicians, should be making it.

"One of the most important principles at stake here is protecting the relationship between physicians and their patients from intrusion by politicians," says Roger Evans of Planned Parenthood.

Critics of a ban fear that is exactly what will happen, with Chief Justice Roberts now at the helm of the new court.

Six years ago, the Supreme Court struck down a similar law in Nebraska, five to four. Justice Sandra Day O'Connor was the deciding vote.

But O'Connor has now stepped down and analysts are looking to a new potential swing voter: Justice Anthony M. Kennedy. In the Nebraska case, Kennedy was in the minority, writing that states should be allowed to eliminate, "a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life."

When President Bush signed the Partial Birth Abortion Act in 2003, he said, "The facts about partial birth abortion are troubling and tragic, and no lawyer's brief can make them seem otherwise. By acting to prevent this practice, the elected branches of our government have affirmed a basic standard of humanity -- the duty of the strong to protect the weak."

Now it is the Supreme Court's job to decide whether the law he signed is unconstitutional.

This case does not directly challenge the Roe v. Wade decision that legalized abortion, but there is another case waiting in the wings that does. It is a South Dakota law that bans nearly all abortions. That law goes before the voters in South Dakota on Tuesday. If it survives, it is certain to come before the Supreme Court.