Courts of Appeals Decide Abortion Cases

Within an hour of Sam Alitos confirmation to the Supreme Court of the United States, both the Second Circuit and the Ninth Circuit issued their long-awaited decisions in the partial-birth abortion cases.  Not surprisingly, the Ninth Circuit Court of Appeals held that the ban on partial-birth abortion was, in fact, unconstitutional.  While the Second Circuit also held the ban unconstitutional, the judges wrote that the process was morally repugnant.  There was also a dissent in the Second Circuit case, noting the horrific nature of partial-birth abortion and arguing that Roe v. Wade should not be deemed to protect the destruction of human life outside of the womb. 

What this means for the Supreme Court is significant.  Now all three Court of Appeals cases have been decided.  All of the evidence that we were able to bring into the trial in New York will now be before the Supreme Court of the United States.  I anticipate that petitions for certiorari will be filed in these two cases in the next 30-60 days.  The New York case has particular interest for us because not only did the court express its desire to see this practice ended, but we played a significant role assisting the Department of Justice in the trial of the case.  Judge Casey, the U.S. District Court Judge, allowed significant evidence in concerning the brutality of this practice.  All of this evidence will now be before the Supreme Court.  I am in Washington, DC, today putting together a senior research team to work on this project. 

With the addition of Sam Alito to the Supreme Court, I believe we have the five necessary votes to sustain a ban on this practice.  In Stenberg v. Carhart, the Supreme Court voted 5-4 against our position.  Chief Justice Rehnquist, Justices Scalia, Thomas and Kennedy would have ruled in our favor, holding the ban constitutional.  Justice OConnor was the decisive swing vote in the case.  With her retirement now in place and Sam Alito confirmed, I believe we have the fifth vote to see this practice no longer enshrined in our Constitution.

I will keep you posted as we make progress on this issue.