Partial-Birth Abortion and the U.S. Supreme Court, Round 2

Interview With Law Professor Teresa Collett

MINNEAPOLIS, Minnesota, OCT. 22, 2006 ( In the coming weeks, the U.S. Supreme Court will decide for a second time whether a statutory ban on partial-birth abortion is constitutional. Will a Catholic majority on the bench make a difference?

Teresa Stanton Collett, a professor at the University of St. Thomas School of Law, doesn’t think so.

As the author of an amicus brief on the partial-birth abortion case, Collett shared with ZENIT how upholding the federal partial-birth abortion ban would affect future legislation, and why the Catholic justices might not be swayed by their personal beliefs.

Q: Once again, the U.S. Supreme Court will consider the constitutionality of a statutory ban on the procedure known as partial-birth abortion. What makes this case different from the Stenberg decision that struck down a similar ban six years ago?

Collett: In Stenberg, a majority of the court found the Nebraska law unconstitutional for two reasons.

First, they believed that the definition of the banned procedure was too broad, including both partial-birth abortion and dismemberment abortion. Dismemberment abortion — D&E abortion — is the method of abortion in 95% of the abortions performed at or after 12 weeks of pregnancy.

Second, the justices were persuaded that a ban of any abortion method must contain an exception for performance of the procedure when necessary to preserve the woman’s health, notwithstanding that that there was no evidence of any health condition that required the use of partial-birth abortion.

In crafting the federal partial-birth abortion ban, Congress did two things.

First, they narrowed the definition of the banned procedure to make it clear that it only applied to partial-birth abortion.

Second, unlike the Nebraska state legislature, they held numerous hearings to determine if there was any health condition that required the use of partial-birth abortion.

Because there was no evidence of any condition that could not be addressed through the use of other abortion techniques, the legislators did not include a health exception. Supporters of the law are optimistic that these changes will result in the court upholding the federal ban.

Q: What effect would upholding the federal partial-birth abortion ban have on future abortion legislation? Would it give more latitude to Congress and the states to craft more substantive restrictions on abortion?

Collett: Whether upholding the federal ban would allow legislatures to regulate abortion more extensively depends on how and why the court upholds the ban. If it is upheld due to Congress’ ability to regulate businesses that effect interstate commerce, this could have little impact on states’ ability to legislate in this area.

However, a ruling could have significant impact if the law is upheld because the state’s interest in protecting the unborn in the second half of pregnancy outweighs a woman’s right to end the pregnancy absent a life-threatening condition.

It would have an even larger impact if the law was upheld on the basis that abortion providers cannot attack an abortion law on the basis of hypothetical cases before the law has been applied to them.

Q: One criticism of the ban was that it was a waste of time and resources because it will not actually save one child from being aborted. What practical or symbolic value do you think such legislation holds?

Collett: The federal partial-birth abortion ban has both significant practical and symbolic value. The practical value is twofold.

First, it is the first national abortion regulation that pro-life forces have passed since the restriction of federal funding for abortion.

Second, while it is true that the law does not directly save one child’s life, it has established even the most extreme abortion measures.

It is clear that the national debate on this topic has moved many citizens to the pro-life side, or at least away from the “pro-choice in all circumstances” position. It also has made the issue of whether the unborn feel pain during an abortion a topic of national conversation. These are good things.

Q: One important principle of Catholic social teaching is subsidiarity. Many abortion opponents adhere to a similar principle at work in the American system of government known as federalism, and are troubled by expansive congressional regulation of a subject matter traditionally left to the states. Is there a hidden danger of using the federal government’s power to regulate abortion?

Collett: Our opponents have been only too happy to use federal power to squash debate on abortion. Consider the federal Free Access to Clinic Entrances Act — the FACE law — that requires the imprisonment of those who pray the rosary too close to an abortion clinic.

Abortion, like slavery, infects the whole of any society that permits it. The protection of innocent life is a principle that should not depend on geographic location, but rather should be an organizing principle of our communal life.

Q: The use of international law in the constitutional decisions of the U.S. Supreme Court has been on the rise. Do you see the court looking to the abortion laws of other nations, most of which have far more restrictive abortion laws than the United States?

Collett: The partial-birth abortion procedure is not used in other Western European nations, so members of the court who want to find the law unconstitutional will be hard pressed to use international law to justify finding that it is unconstitutional under the American Constitution.

Q: What difference will a Catholic majority on the Court make on abortion-related jurisprudence?

Collett: Sadly, probably very little since most lawyers are taught that their role as lawyers and judges must trump any moral values they hold. Justice Antonin Scalia has an essay defending this view on the First Things Web site.

There is nothing to indicate that Justices John Roberts and Samuel Alito see the issue of whether the court should retain the unjust interpretation of Roe v. Wade any differently because they are Catholics.

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