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Roberts court faces first abortion cases

New Supreme Court justices could tip the balance to uphold a ban on so-called partial-birth option.

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In their confirmation hearings last year, John Roberts and Samuel Alito sidestepped pointed questions about whether they would overturn abortion precedents. Now, a year later, the country is about to get some answers.

Wednesday, the US Supreme Court takes up two cases challenging the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003.

The cases offer a first look at how the high court under Chief Justice Roberts will approach the divisive issue of abortion. While the Partial-Birth Abortion Ban Act poses no direct threat to major abortion precedents like Planned Parenthood v. Casey and Roe v. Wade, activists on both sides of the debate are watching closely to see if the two federal ban cases – and new justices on the court – trigger a turning point in abortion jurisprudence permitting more rigorous regulations at the state and federal level.

At issue in Gonzales v. Carhart and Gonzales v. Planned Parenthood is whether Congress acted within its authority when it mandated a national ban of so-called partial-birth abortions without including an exception to protect a woman's health.

Protection of a woman's health has been a paramount concern of the high court since Roe v. Wade. But the Partial-Birth Abortion Ban Act introduces a second concern – as the law puts it: "protecting the life of the partially-born child."

Supporters say the law is necessary to foster respect for human life by outlawing what they call a gruesome abortion procedure that approaches infanticide. Opponents see the federal ban as part of an agenda to gut and eventually overturn abortion precedents all the way back to Roe v. Wade.

That's why, during their confirmation hearings, Judges Roberts and Alito were asked early and often about abortion and the legal concept of enforcing existing precedents known as stare decisis.

"I do think it is a jolt to the legal system when you overrule a precedent," Roberts told the Senate Judiciary Committee in September 2005. But he added, "The principles of stare decisis [also] recognize that there are situations when that's the price that has to be paid."

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