Interesting Twist...

So to sum up the last week or two on this blog, there are many members of the blog incredibly upset that the South Dakota legislature might push through the incredibly embarrassing "abortion bill".

Well, the topic of abortion will also be heard in front of the United States Supreme Court next fall. This decision was made on Justice Alito's first day. Sidenote: When questioned about abortion during his confirmation hearings, Alito said he would keep an "open mind" on the topic.

So what case will be heard? The court accepted, for argument, the Bush Administration's appeal of a decision invalidating the Partial-Birth Abortion Ban Act of 2003. That Act created a law that makes it a crime for a doctor to perform an abortion during which a portion of the fetus is outside the woman's uterus at the time the fetus is killed.

The law's supporters maintained that this technique is used only late in pregnancy, and that the law therefore does not present an obstacle to most abortions. However, abortion-rights advocates maintained that the statute's description applies to procedures used to terminate pregnancies as early as 12 or 13 weeks.

There are exceptions to the law, namely when the technique is necessary to save a pregnant woman's life, but interestingly, the exception does not apply to preserve the health of the pregnant woman.

A few years back, the Court heard the arguments in Stenberg v. Carhart, and they overturned a NE law which did not allow an exception for the health of the mother, only if the mother could die. (Note: Interesting similarity to partial-birth act). Why is this important? Well, the decision was 5-4, and Sandra Day O'Connor was in the majority. In the minority were Scalia, Thomas, Kennedy and Rehnquist. As we all know, O'Connor retired and Rehnquist died. They were replace by Alito and Roberts. Roberts is a bit more middle of the road on many issues, but he's still deemed a conservative. Alito is more conservative.

This suggests that Alito COULD make the tie-breaking decision in the new case. Otherwise stated, he could vote contrary to O'Connor, making the decision 5-4 in favor of the Administration's ban.

Sidenote: The last "abortion" decision by the Court was Ayotte v. Planned Parenthood of New England, which was decided on January 18th, and was O'Connor's final opinion before her retirement. It was a unanimous opinion which maintained the Court's long-standing insistence on an exception for medical emergencies. HOWEVER, the Nebraska case I just described was NOT referenced in the decision, which suggests that the Court anticipates a change. Why do I say this? Well, everytime a case is mentioned in an opinion of another case, the "clout" of that case strengthens (aka "precedent"). When a case isn't referred to in another case, especially if it has similar facts or law, that opens the door to an argument that the Court either (1) doesn't find that older case to be good law anymore, or (2) doesn't think that case applies.

To sum up...the Court may chip away at the medical exceptions to abortion. Once you start chipping away at something, subsequent "chips" get easier.

Just thought I'd let you know.