Today
the Center for Reproductive Law and Policy (CRLP) filed a petition with
the U.S. Supreme Court, urging that it affirm the lower court decision
striking down Nebraska's "partial-birth
abortion" law as an unconstitutional ban on abortion. In opposing the
state's petition for review in Stenberg v. Carhart, CRLP urges the Court
not to take the case based on questions presented by Nebraska, but rather
to settle the important issue of the unconstitutionality of the ban by
affirming, without further argument or briefing, the U.S. Court of Appeals
for the Eighth Circuit ruling striking down the statute.
"Nebraska's abortion ban is an unconstitutional violation of Roe v.
Wade and other Supreme Court rulings that guarantee women's right to
choose abortion using the safest medical methods available," said
Simon Heller, Director of Litigation for CRLP, a legal advocacy
organization that is challenging "partial-birth abortion" bans in 14
states, including Nebraska.
CRLP's opposition to Nebraska's petition is a preview of the arguments
CRLP will make when seeking Supreme Court review of the Seventh Circuit's
decision upholding the Wisconsin "partial-birth abortion" law. CRLP
proposes that the "partial-birth abortion" cases may be worthy of Supreme
Court review for two reasons: First, to assure the vitality of the right
to privacy guaranteed by Roe and subsequent decisions; and second, to
confirm that broadly written state statutes prohibiting constitutionally
protected conduct cannot be rewritten by a federal court in a manner that
violates the legislature's intent and fails to remedy constitutional
defects.
The Seventh Circuit decision, issued on October 26, 1999, created a
split in the circuits by upholding laws virtually identical to those
struck down by a unanimous decision of the Eighth Circuit one month
earlier. U.S. Supreme Court Justice John Paul Stevens, who is the Circuit
Justice for the Seventh Circuit, has become involved in the issue,
granting a stay of the Seventh Circuit decision pending a decision from
the full Court to review the case. CRLP's petition to the Court is due in
late January, 2000.
CRLP contends that the Seventh Circuit decision violated Supreme Court
precedent by upholding an abortion restriction that lacked an exception to
protect the health of the woman, leaving intact a restriction that does
not serve a valid state interest of protecting maternal health and life,
and failing to strike down a restriction that extends to other
constitutionally protected procedures.
In its petition to the Court, the state of Nebraska has raised the
conflicts between the circuit courts as a reason to take the case.
However, CRLP claims the state's arguments for reviewing the law are
"meritless" and should be rejected. For example, Nebraska urges the Court
to take the case so to establish that the "partially-born" are entitled to
the rights guaranteed by the Fourteenth Amendment. Also, Nebraska seeks
review as an opportunity for the Court to overturn Roe, despite the Court
recently and definitively rejecting a similar argument in its 1992 Planned
Parenthood v. Casey decision.
