The doctors challenging the law disagree with that second finding and say that the alternative method involves breaking up the fetus inside the woman, creating bone fragments that can puncture the uterus. That is, Congress is forcing some women, who need a late-term abortion to preserve their health, to destroy the fetus with a method that is at least as brutal to the fetus and more harmful to the woman.
Ever since Roe v. Wade and its companion case, Doe v. Bolton, in 1973, the court has required exceptions for health as well as life in any regulation of abortion. But the vote in the [Court's earlier "partial-birth" abortion] case, Stenberg v. Carhart, was 5 to 4, with Justice Sandra Day O'Connor in the majority. It is highly likely, therefore, that her successor, Justice Alito, will be in the position to cast the deciding vote. The dissenters in the Nebraska case were Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, along with Chief Justice William H. Rehnquist, who has since been replaced by Chief Justice John G. Roberts Jr.The difference between this case and Carhart, other than the change in the Court's personnel and the fact that this is a federal, not a state law, is that Congress made those findings. In that light, this becomes a case about how much the Court ought to defer to a legislature when it acts in an area of individual constitutional rights and makes assertions about facts in order to define away those rights. I do not think that is territory the Court should cede to the legislative branch. It is the Court's duty to say what rights are, and if rights are to be rights, a legislature seeking to work its will should not also have the power to structure the factual setting to make it look as though rights it wants to preclude do not exist.
After the court's announcement, groups on both sides of the abortion debate tried to attach some significance to the decision to accept the case. In fact, it would have been highly unusual for the court to turn down the appeal. A lower court's invalidation of a federal statute has an almost automatic claim on the justices' attention, even those justices who may view the decision as correct or those who may not necessarily agree in this instance with the administration's description of the case as "extraordinarily important."
Meanwhile, the South Dakota legislature is about to ban all abortions unless the woman's life is in danger:
"I'm convinced that the timing is right for this," said State Representative Roger Hunt, a Republican who has sponsored the bill, noting the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court.
"The strong possibility of a third appointee sometime soon makes this all very real and very viable," Mr. Hunt added, a reference to conjecture that Justice John Paul Stevens, 85, might soon retire. "I think it will all culminate at the right time."