Next abortion case on the way
on Sep 2, 2005 at 8:18 pm
The deeply controversial issue of the power of government to impose a flat ban on an abortion procedure has moved several procedural steps closer to the Supreme Court — in cases from Nebraska and Virginia. Both cases test the constitutionality of laws making it a crime to perform a procedure that abortion opponents call “partial-birth abortion.” Both statutes were enacted in 2003.
The Nebraska case appears to be moving toward the Court somewhat more rapidly. The Eighth Circuit struck down a federal law imposing a ban on the procedure on July 8. The Justice Department did not seek rehearing en banc, and the mandate was issued on Thursday. Under Supreme Court rules, the government will have until Oct. 6 — in the first week of the new Term — to ask the Justices to hear the case. (The 90-day filing period for seeking Supreme Court review runs from the date of the ruling, on July 8, not from the date of issuance of the mandate. The mandate was issued after the time had expired for a petition for rehearing en banc.) In the Eighth Circuit, the case was Carhart, et al., v. Gonzales, et al., Circuit docket 04-3379. There is little or no doubt that the Justice Department will appeal to the Court; it has mounted a vigorous defense of the federal ban since its enactment.
In the Virginia case, the Fourth Circuit in a 2-1 decision on June 8 found a similar state ban invalid. On Friday, the Circuit, by a vote of 9-3, refused to rehear the case en banc as requested by state officials. Virginia Attorney General Judith Williams Jagdmann said in a statement that the state was reviewing its options, but it seems likely to appeal to the Supreme Court, since her office had told the Circuit Court in seeking en banc review that the case raised “questions of exceptional importance.” The 90-day period for seeking Supreme Court review in the case of Richmond Medical Center for Women, et al., v. Hicks, et al. (Circuit docket 03-1821) will run until Dec. 1.
It is unclear what impact there will be on either case from the Court’s review of Planned Parenthood of Northern New England v. Ayotte (docket 04-1144). While that case involves a parental notice abortion law, it raises issues closely similar to those in the partial-birth abortion cases — the need for a health exception to any limit on abortion procedures, and the standard of review for abortion legislation. The Court is to hear oral argument in the Ayotte case on Nov. 30. It is possible, of course, that the Court may hold any appeal in a partial-birth abortion case until after it has decided Ayotte.
(Thanks to Howard Bashman of How Appealing blog for a tip on the Fourth Circuit’s denial of en banc review.)
