Alito's first abortion action on the Supreme Court

As the newest justice takes the bench, the Justice Department coincidentally asks the court to reconsider the "partial-birth abortion" ban.

Published February 17, 2006 10:00PM (EST)

The Supreme Court is holding a private meeting today to decide which cases to hear in the coming weeks. One of the appeals the court will consider is Gonzales v. Carhart, a case on the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. And the timing is enough to give us goose bumps: The Justice Department on Tuesday requested that the court consider reinstating the ban, and new Justice Samuel Alito joined his colleagues in the courtroom for the first time on Thursday.

As the helpful SCOTUS blog explained earlier this week, the partial-birth abortion ban has been struck down by various federal courts for various reasons. My favorite opinion came from the 9th Circuit Court of Appeals, which objected to the fact that when Congress crafted the legislation, it not only did not include an exception for the health of the mother but explicitly said no such exception was necessary because "the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman." (Just like the 9th Circuit -- as well as plenty of physicians -- we here at Broadsheet aren't quite in agreement with Congress on these "facts.") But there are other worthy objections to the ban, including issues with the legislation's vague language, which could allow some types of abortions to be construed as "partial birth" and therefore illegal.

Anyway, the Justice Department is requesting that the Supreme Court not "unduly postpone the ultimate resolution of the extraordinarily important question" at hand by kicking the case back to a lower court for review (as the court did last month with Ayotte v. Planned Parenthood). Instead Attorney General Alberto Gonzales and the Justice Department want the court to just decide once and for all whether the ban is OK as is (aah!) or whether right-wingers have to go back to the drawing board to build a better ban (less immediate, but also aah!).

According to our pals at the Planned Parenthood Federation of America, an announcement from the Supreme Court on whether it will hear the case is expected on Tuesday.

By Page Rockwell

Page Rockwell is Salon's editorial project manager.

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