The constitutionality of a broad abortion ban may be headed for Supreme Court review . Last July, the Eighth Circuit struck down a federal ban on certain abortions. The Act was passed by Congress in 2003 and does not include an exception allowing the procedure when it is necessary to protect a woman’s health. The Bush Administration has asked the Supreme Court to review the Eighth Circuit’s decision. In January, the Supreme Court postponed a decision whether to hear the case, and the next opportunity for the Court to decide is when it meets on February 17.
Last week, on the same day, the Courts of Appeals for the Second Circuit and the Ninth Circuit both issued decisions upholding lower court rulings (by district courts in New York and California, respectively) that the same federal abortion ban is unconstitutional. The Ninth Circuit unanimously declared the ban unconstitutional and struck it down in its entirety, for three separate reasons: it lacks a health exception, it is an undue burden on women’s right to choose because it would effectively ban abortion as early as the 12th week of pregnancy, and it is so vague it deprives doctors of notice of what is prohibited. The Second Circuit focused only on the lack of an exception, which it held unconstitutional, but it did not strike down the statute in its entirety. Instead, it relied on the Supreme Court’s recent Ayotte decision, and ordered the parties to file additional briefs on whether there is an appropriate remedy that would bar application of the statute in some circumstances without striking it down completely. As we reported, the Supreme Court in Ayotte acknowledged that barriers to abortion must protect a woman’s health, but ruled that a law that is unconstitutional in circumstances where a woman's health would be endangered may be struck down only as to those circumstances rather than in its entirety, if that is consistent with the legislature's intent.
With the Second and Ninth Circuit Court decisions, that means that all three of the three challenges to the federal law have been successful – unless the Supreme Court, with its new members John Roberts and Samuel Alito, grants review of one or more of these cases and decides otherwise. Stay tuned.
