The Supreme Court on Partial-Birth Abortion

This is a partial transcript of "Special Report With Brit Hume" from Feb. 21, 2006, that has been edited for clarity.

(BEGIN VIDEO CLIP)

SUSAN MUSKETT, NATIONAL RIGHT TO LIFE: We are hopeful at this time that now that Justice Samuel Alito has replaced Justice Sandra Day O’Connor, that five members of the court will reverse the extreme decision that was entered into 2000.

KIM GANDY, NOW PRESIDENT: She has been replaced on the court by a stalwart opponent of women’s reproductive rights, Sam Alito. So that tells me that it is very likely that the case will swing back the other direction.

(END VIDEO CLIP)

BRIT HUME, HOST: There you see two people with diametrically opposite views on what the law should be regarding abortion and in this case, particularly, partial-birth abortion, with essentially identical views on what is likely to happen as a result of the Supreme Court taking up this issue anew, having ruled on it one way six years ago. And as you heard the two suggest, it could be different this time with Alito on the court. Fred, what about this?

FRED BARNES, THE WEEKLY STANDARD: Well, it could be different with Alito on the court. It all boils down to one thing and that is whether this is a health exception, which is not in there. And Sandra Day O’Connor, she was the swing vote, the fifth vote in overturning a state ban on partial-birth abortion. This was what, three or four years ago.

HUME: In 2000, I think, six years ago.

BARNES: OK. It was a Nebraska case and she said since there was no exception to protect the health of the mother, then the law had to fall. What Congress has done this time, they’ve said, we don’t have a health exception here. And we are resting on the fact there is a considerable body of medical opinion that says a partial-birth abortion is never medically necessary.

HUME: For the health of the mother.

BARNES: For the health of the mother. It is never medically necessary at all. And so they argued and the administration argues that this fact should be accepted, in other words, they should accept.

HUME: The factual finding of the Congress?

MORT KONDRACKE, ROLL CALL: It’s going to be hard for this court to base this entirely on law and not on medical evidence, which probably they don’t want to do, but they may have to, as to whether this procedure is or is not ever medically necessary. The doctors who challenged the law said that it sometimes is necessary to protect the health of the mother in cases of high blood pressure and stuff like that.

HUME: What happened in the lower courts on this?

KONDRACKE: What happened in the lower court is you have three appellate courts that have overturned this ban, one of them rather narrowly, the 9th Circuit Court, as you might expect, the most liberal circuit on a broad front saying that they disregarded all the medical evidence to the contrary, etc.

And so the court had to take this up. You have got a conflict amongst appellate courts.

HUME: No, no. They were unanimous.

BARNES: Look. Mort. The reason they took it up, this is a law passed by Congress and signed by the president. You can’t leave that to the lower courts. The Supreme Court has to decide it. That’s what they’re there for.

HUME: All right. So Mara, what do you think what will happen?

MARA LIASSON, NATIONAL PUBLIC RADIO: I don’t know what will happen. I think this will be a real test, though. This is a precedent that could be overturned. It’s narrow, it’s about the health exception, and it doesn’t go to the basic fundamental right to an abortion. But I think we are going to find out if the addition of Justice Samuel Alito to the court really makes a difference or not.

HUME: This is a case that would go directly to that question since Justice O’Connor was the key vote here. The others who voted, the other four who voted the other way are still on the court. They’re still on the court. So Alito, if Alito disagrees with O’Connor .

LIASSON: You think it would be open and shut — the partial-birth abortion ban would be declared constitutional. We’ll see.

BARNES: The other four are not on the court. Roberts has replaced Rehnquist.

HUME: But he can be expected to go the same way, perhaps, as Rehnquist.

BARNES: You’d think.

HUME: You never know, though, do you?

KONDRACKE: There isn’t as much precedent backing up the 2000 decision on partial birth as there is on Roe v. Wade. So if Alito is of a mind to go against O’Connor’s point of view, it’s done.

HUME: Let me raise a question within the journalistic community on this. Some news media insist on calling this not partial-birth abortion, but a kind of late-term abortion. Doesn’t tell you very much about what the procedure is. What about that? At FOX News, we're...

LIASSON: Partial-birth abortion was the name chosen by the anti-abortion rights or pro-life side of this debate.

HUME: Wasn’t that what it was called before that?

BARNES: She’s right about that. But it accurately describes it. What happens here is a baby, an unborn child is pulled halfway out of the mother’s womb and then something is stuck in its brains and its brains are sucked out. That’s what happens here. And it is partially born. Describes it perfectly. There’s nothing in the constitution that says there’s a right to do this.

HUME: What should they call it?

BARNES: They should call it partial-birth abortion.

HUME: Mort?

KONDRACKE: That’s what I call it.

HUME: Mara?

LIASSON: I think that calling it a type of late-term abortion is perfectly fine.

HUME: That’s it for the panel.

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