Twilight time for partial-birth abortion?

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During the last two Supreme Court confirmation hearings, Sen. Arlen Specter asked the nominees about the "super-duper" precedence of Roe v. Wade. The term earned some justified guffaws, but pro-lifers took the senator's point, which is that Roe has a pretty formidable defense in both the court of law and public opinion. The best tactics for abortion opponents is to limit the expanse of the ruling, not challenge it directly, at least for now.

The Republican-controlled Congress followed this strategy when it overwhelmingly passed the Partial-Birth Abortion Ban Act of 2003. Except among abortion-rights extremists, the practice in which a unborn baby's skull is crushed and brain removed has almost no public support. But all legislative efforts to end this gruesome form of infanticide have foundered in the courts, which typically rule that any ban must include exceptions for the "health" of the mother. That's what the Supreme Court ruled in 2000 when it struck down a Nebraska ban by a 5-4 vote.

Unfortunately, the 2003 law, which makes an exception for the life of a mother, but not her "health," has met a similar fate in three lower courts. It is surprising then that the Supreme Court has agreed to hear the case, Gonzales v. Carhart, since the lower courts were unanimous on the unconstitutionality of the ban. It also may be a sign that the court is preparing to overturn its 2000 ruling.

The dissenting justices in the Nebraska case were Antonin Scalia, Clarence Thomas, William Rehnquist and Anthony Kennedy. Justice Sandra Day O'Connor cast the deciding vote. If Chief Justice John Roberts votes as his predecessor, then the replacement of Justice O'Connor with the more conservative Samuel Alito could tip the balance in favor of upholding the ban.

This is a plausible outcome. In the first place, the 2003 law is in many ways a more focused ban than the Nebraska law, which opponents claimed was so deliberately vague that it could have been interpreted to include other procedures. Republicans addressed those criticisms when they drafted the federal ban. Also, both Justices Roberts and Alito expressed anti-Roe sympathies earlier in their careers, though they resisted reaffirming or denying those views during their confirmation hearings.

The chink in this analysis is that Justice Roberts is a first-time judge and Justice Alito is a known believer in stare decisis, the legal principle that judges should follow precedent. When he sat on an appellate court, for example, then-Judge Alito voted to strike down a New Jersey ban based on the 2000 Supreme Court precedent.

But if the two new justices really are in the mold of Justices Scalia and Thomas, as the president believes, then the days when partial-birth abortion is a constitutionally sanctioned procedure may be coming to an end.