IT ISN'T EVERY day that the Supreme Court confronts a law materially identical to one it has already struck down. But that is what the justices faced last week when they heard oral arguments over the federal ban on partial-birth abortions. Six years ago, the court struck down state partial-birth laws -- ruling that Nebraska's ban was overly broad and lacked an exception for situations in which protecting a woman's health required the use of the disfavored procedure. In response, Congress enacted its own version of the ban, complete with nearly all of the faults from which the Nebraska statute had suffered. The Justice Department contends that the new law can be reconciled with the court's prior ruling. This is laughable. The only way to uphold this law would be to overturn the prior decision -- a step that the justices should not take, in the interest of women's health and out of respect for precedent.
"Partial-birth abortion" is a political term, not a medical one. If Congress had wanted to pass a ban on either late-term abortions or on the particular procedure normally associated with the "partial-birth" label, it was free to do so as long as it defined it carefully and maintained a health exception. It did neither. Instead, it defined "partial-birth abortion" in a fashion that could once again include some abortions performed using the method most common in the second trimester. And it sought to get around the court's insistence on a health exception by asserting, in a purported factual finding, that the procedure is never medically necessary to protect a woman's health.
This, as several lower courts have found, isn't true. And while the Supreme Court generally owes deference to congressional fact-finding, that does not entitle the legislature to get around the high court's constitutional holdings with factual assertions at odds with both its own legislative record and voluminous testimony in the lower federal courts.
The real question this case presents is whether the court, with Justice Sandra Day O'Connor retired, will continue to honor its precedent. In that sense, the case will shed important light on the court's new members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., neither of whom tipped their hands at oral arguments. Both men testified eloquently at their confirmation hearings about their high regard for stare decisis -- the principle that precedents should generally be permitted to stand. Both would send a powerful message of respect for the court's institutional work if, in a case so politically loaded and with so many people expecting a predictable ideological split, they declined the invitation to either contort or reverse a high-profile precedent and merely applied it instead.