CURRENT ISSUE:  October 9, 2006VOL. 44, NO. 17Oakland, CA

Court to review abortion cases

By Patricia Zapor
Catholic News Service

WASHINGTON (CNS) -- With the Oct. 2 opening of its new term, the Supreme Court will quickly face cases on the federal law banning a procedure known as partial-birth abortion and others on protecting the environment, all of which are drawing attention from the religious community.

Court observers are eyeing two abortion cases, in which the 9th and 8th U.S. Circuit Courts of Appeals each said the 2003 federal law banning partial-birth abortion was unconstitutional, to see if recent changes in the Supreme Court’s makeup will affect the outcome of abortion-related decisions.

The U.S. Conference of Catholic Bishops is among the organizations that filed amicus, or friend-of-the-court, briefs urging the high court to uphold the ban and use the cases to reverse the 1973 Roe v. Wade decision that legalized abortion nationwide.

Another case that has attracted the attention of Catholic organizations is a lawsuit by the commonwealth of Massachusetts against the Environmental Protection Agency, for failing to adopt regulations that would limit greenhouse gases that contribute to global warming.

The National Catholic Rural Life Conference joined the National Council of Churches in an amicus brief arguing that the EPA was remiss in ignoring reports that greenhouse gas emissions from motor vehicles are contributing to global warming.

Christian ethics call for stewardship of the environment, the brief said, and the two organizations “therefore contend we must reduce our substantial contributions to climate change to protect the world entrusted to us.”

The two abortion law cases are challenges to the 2003 federal law banning partial-birth abortion. Both rulings on appeal at the Supreme Court, as well as one by the 3rd U.S. Circuit Court of Appeals that is not before the high court, found the legislation unconstitutional.

In Gonzales v. Carhart, the 8th Circuit sided with Dr. Leroy Carhart, a Nebraska abortion doctor who successfully sued to overturn that state’s partial-birth abortion ban. In 2000 the Supreme Court ruled 5-4 the state law was unconstitutional because it lacked a provision allowing an exception in cases where the pregnant woman’s health is at risk.

Congress sought to reverse the effect of that ruling by passing a federal law banning the procedure nationwide. The bill did not include a health exception, because, the bill’s proponents argued, sufficient evidence had been heard that this particular procedure is never medically necessary.

The banned procedure involves partially delivering a live fetus and then puncturing the brain stem to kill the baby before completing the delivery.

Supporters of keeping the procedure legal argue that it is usually used late in pregnancy when other abortion methods are more dangerous to the woman.

In Gonzales v. Planned Parenthood, the 9th Circuit ruled on behalf of a San Francisco-based Planned Parenthood affiliate and its national organization that the federal law is unconstitutional because it lacks a health exception, imposes a burden on a woman’s right to choose to have an abortion and is constitutionally vague.

The legal question before the Supreme Court when it hears both cases Nov. 8 is whether the law is invalid because it lacks a health exception or otherwise is unconstitutional on its face.

At a Sept. 25 briefing on the new term, hosted by the Georgetown University Law Center, professor Randy Barnett noted that in the 2000 Nebraska case now-retired Justice Sandra Day O’Connor voted with the 5-4 majority.

With O’Connor off the court, it would be a simple matter for a different majority to find that the lack of a health exception in the federal law does not render it invalid, he said.

Barnett warned it would be “somewhat of a mistake to view this as a straight abortion case,” however. Unlike previous major cases including Roe v. Wade that were based on whether laws restricting abortion infringe on a woman’s right to privacy, in this case that’s not at issue, he said.

Instead, he suggested the case could turn on a variety of other points, including whether Congress properly considered the possibility that partial-birth abortions may sometimes be medically necessary.

Besides O’Connor, the court also lost Chief Justice William Rehnquist last term. They were replaced, respectively, by Justice Samuel Alito and Chief Justice John Roberts.

With two new justices on the court, Barnett said, the cases could also turn on the importance the justices place on “stare decisis,” or the legal doctrine that gives great weight in rendering rulings to previous decisions of the court.

In the environmental case, 12 states and cities including New York, Washington and Baltimore joined environmental organizations to sue the EPA, charging that the federal agency was obligated under the Clean Air Act to enact regulations to limit the output of automobile emissions linked to global warming.

In urging the court to insist that the EPA assert its regulatory authority to try to avert global warming, the religious groups argued that besides concern for the stewardship of the planet the religious community is concerned about threats to public health and welfare.

“A warming climate also gravely threatens human communities and particularly those living closest to the edge of survival, such as the poor, the homeless and inhabitants of marginal lands,” said the brief.

The case will be heard Nov. 29. Rulings in the abortion cases and the environmental case are expected by the time the court term ends in June.

Additional cases are likely to be added to the court’s docket soon after the term opens.

One case rejected by the court on opening day was an appeal of a 7th U.S. Circuit Court of Appeals ruling upholding the firing of Richard Tomic by the Catholic Diocese of Peoria, Ill.

Tomic alleged that his firing was a result of age discrimination.
The diocese maintained that dismissing Tomic fell within the “ministerial exception” to federal anti-discrimination laws and that the Church was not subject to such provisions.

Chief Justice John Roberts speaks with Archbishop Donald W. Wuerl of Washington (right) and Archbishop Pietro Sambi, the apostolic nuncio to the United States, after the Red Mass at St. Matthew Cathedral in Washington, Oct. 1. The annual Mass is celebrated traditionally the Sunday before the new Supreme Court session begins. CNS PHOTO/JOSHUA ROBERTS/REUTERS

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