Communications Department

U.S. Supreme Court Agrees to Review Federal Partial-Birth Abortion Ban Act

Feb 21, 2006 | 2006 Press Releases

What follows is a media advisory from the National Right to Life Committee (NRLC) in Washington, D.C., issued on February 21, 2006, regarding today’s announcement by the U.S. Supreme Court that it has accepted the Bush Administration’s request that it review a lower-court ruling invalidating the federal Partial-Birth Abortion Ban Act. For additional information or to arrange an interview on this subject, send e-mail to or call 202-626-8825.

WASHINGTON (February 21, 2006) — Six years after its much-criticized ruling that Roe v. Wade fully protects the brutal practice of partial-birth abortion, the U.S. Supreme Court today agreed to take another look at the issue.

The justices announced that they would review a lower-court ruling that has blocked enforcement of the Partial-Birth Abortion Ban Act, a bill signed into law by President George W. Bush on November 5, 2003. The Bush Administration had urged the Court to accept the appeal, most recently in a brief filed by the Solicitor General on February 14.

The Court will hear arguments and decide the case during its next term, which begins in October.

Commenting on today’s Court announcement, Douglas Johnson, legislative director for the National Right to Life Committee (NRLC), said, “Unless the Supreme Court now reverses the extreme position that five justices took in 2000, partly born premature infants will continue to die by having their skulls punctured by seven-inch scissors.”

In 2000, five justices of the Supreme Court, including recently retired Justice Sandra Day O’Connor, ruled that the abortion right originally created in Roe v. Wade allows an abortionist to perform a partial-birth abortion any time he sees a ‘health’ benefit, even if the woman and her unborn baby are entirely healthy. (Stenberg v. Carhart, June 28, 2000) This ruling struck down the ban on partial-birth abortion that had been enacted by Nebraska, and rendered unenforceable the similar bans that more than half the states had enacted.

Nevertheless, in 2003 Congress approved and President Bush signed a national law, the Partial-Birth Abortion Ban Act. When he signed the ban, the President called partial-birth abortion “a terrible form of violence [that] has been directed against children who are inches from birth.” He spoke the literal truth.

The federal law bans “partial-birth abortion,” a legal term of art, defined in the law itself as any abortion in which the baby is delivered “past the [baby’s] navel . . . outside the body of the mother,” OR “in the case of a head-first presentation, the entire fetal head is outside the body of the mother,” BEFORE being killed. The complete official text of the law, in a searchable format, is here:

The law would allow the method if it was ever necessary to save a mother’s life. However, it does not allow an abortionist to use the method any time he asserts that it might be slightly preferable to some other method, even for women with no health problems, which is what the five justices required in the 2000 ruling.

Three different federal courts of appeals have ruled that the federal law conflicts with the 2000 Supreme Court decision, and they have blocked enforcement of the law. The Supreme Court today agreed to review the first of those appeals court rulings, a July 2005 ruling by the U.S. Court of Appeals for the Eighth Circuit (Gonzales v. Carhart).

On January 31, 2006, the U.S. Court of Appeals for the Ninth and Second Circuits also ruled that the federal law conflicts with the 2000 Supreme Court ruling. However, in the Second Circuit case (National Abortion Federation v. Gonzales), one of the two judges who voted against the law also criticized the Supreme Court’s previous ruling, and another judge filed a strong dissent.


Among currently sitting Supreme Court justices, five have voted in favor of Roe v. Wade — that is, in support of the doctrine that abortion must be allowed for any reason until “viability” (about five and one-half months), and for “health” reasons (broadly defined) even during the final three months of pregnancy. They are justices Breyer, Ginsburg, Souter, Stevens, and Kennedy.

Two justices (Antonin Scalia and Clarence Thomas) have voted to overturn Roe, and two (John Roberts and Samuel Alito) have not voted on the matter. 

Justice Kennedy, although a supporter of Roe, voted in the 2000 Stenberg case to allow Nebraska to ban the partial-birth abortion method.

On September 14, 2005, the Los Angeles Times published an eye-opening examination, written by its veteran Supreme Court reporter, on the true scope of the “right to abortion” created by the Supreme Court in Roe v. Wade and more recent rulings, which are still often badly misunderstood. (It is here.) The article also summarizes documents that reveal the internal processes at the Supreme Court that produced Roe v. Wade in 1973.


The National Right to Life Committee (NRLC), the nation’s major right-to-life organization, led the coalition that resulted in enactment of the Partial-Birth Abortion Ban Act in 2003, after an eight-year fight. The NRLC website contains the Internet’s most expansive archive of documents pertaining to all facets of the debate over partial-birth abortion, here:

Any journalist or editorialist examining the issue of partial-birth abortion will benefit from reading, at a minimum, “Partial-Birth Abortion: Misconceptions and Realities,” a memo written by NRLC Legislative Director Douglas Johnson, who played a key role in the long debate over the legislation. This memo addresses common misconceptions and misinformation about partial-birth abortion, with links to primary documents, including interviews with partial-birth abortionists and investigative reports in American Medical News, the New York Times, PBS, and other news media. The memo is here:

The memo addresses these topics: the actual language and legal intent of the bill; why “partial-birth abortion” is a legal term of art that is NOT synonymous with various pseudo-medical jargon terms used by the law’s opponents; how use of the nebulous label “late-term abortion” distorts the debate; whether President Bush’s statement (November 5, 2003) that partial-birth abortion is violence directed against those who are “inches from birth” is medically and legally accurate; evidence regarding how many partial-birth abortions are performed; acknowledgments by the National Coalition of Abortion Providers that “in the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along”; key turning points in the eight-year congressional debate; and polls of doctors, obstetricians, nurses, and the general public regarding the ban. The memo also discusses how documented medical illustrations of two different abortion methods can allow the public to better evaluate claims and counterclaims on what the law actually covers and does not cover.

A collection of key documents pertinent to various medical claims surrounding partial-birth abortion — some of which are real eye-openers — are posted here:

During the summer of 2004, U.S. District Judge Richard Casey presided over a trial in New York in one of the three legal challenges to the Partial-Birth Abortion Ban Act (National Abortion Federation v. Gonzales), during which he directly questioned a number of abortionists regarding how partial-birth abortions are performed. Attorney Cathy Cleaver Ruse has prepared a distillation of that eye-opening testimony, just published in the current (Spring 2005) issue of the Human Life Review under the title “Partial-Birth Abortion on Trial.” That article is posted in PDF format here.

Following the trial, on August 26, 2004, Judge Casey issued an opinion stating, “The Court finds that the testimony at trial and before Congress establishes that D&X [partial-birth abortion] is a gruesome, brutal, barbaric, and uncivilized medical procedure . . . [and finds] credible evidence that D&X abortions subject fetuses to severe pain.” Nevertheless, Judge Casey also ruled that the federal ban was in conflict with the 2000 Supreme Court ruling in Stenberg.

Note: Aside from the legal challenges to the federal Partial-Birth Abortion Ban Act, described above, the Commonwealth of Virginia has filed a request for the Supreme Court to review a ruling by the U.S. Court of Appeals for the Fourth Circuit, holding that a similar state law, banning “partial birth infanticide,” contradicts the 2000 Supreme Court decision. This case is called Herring v. Richmond Medical Center for Women. The Supreme Court is scheduled to vote on whether to accept this case on March 17.

National Right to Life is the nation’s largest pro-life organization, with 50 state affiliates and approximately 3,000 local affiliates nationwide. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.