The US supreme court moved a step closer yesterday to taking up its first case on
abortion since the appointment of two judges of President George Bush's choosing, after two federal appeals courts ruled that
a ban on a termination procedure was unconstitutional. The rulings, in courts
in California and New York, were handed down on Tuesday, the same day that the deeply conservative
Samuel Alito was sworn in as a supreme court justice, and underlined how quickly his appointment could change federal abortion
law. This is likely to be the next abortion case before the court and probably the first one Alito will hear," said Lorraine Kenny, a spokeswoman for the American
Civil Liberties Union, which fought the case in New York. "We are concerned." Both rulings said the ban on the procedure, which involves partly removing an intact foetus from the
body after the first trimester before aborting it, was unconstitutional because it failed to provide an exception when alternative
methods could endanger the woman's health.
The ban, which was signed
into law by President Bush in 2003 but never enforced because of legal challenges, would make what the anti-abortion movement
calls partial birth abortion punishable by up to two years' jail for doctors who carry it out.
In a unanimous ruling, the court
Francisco said the law placed an unfair burden on a woman's right to an abortion, and put doctors at risk of criminal liability
for virtually all abortion procedures after the first 12 weeks of pregnancy. The ruling from the New York court was less of a victory for the abortion
rights movement, with an unusually sharp dissent from one judge and a rebuke from the chief judge, John Walker. Mr Walker overturned the ban, but called the abortion
procedure "morally repugnant". He called on the supreme court to issue a ruling that would require opponents of the ban to
demonstrate how it would harm women.
The twin rulings make it increasingly likely that the federal ban on the procedure
would be the next abortion case before the US supreme court, and the first that Justice Alito will hear. The issue is already
before the supreme court after a court in Missouri became the first to strike down the ban by Congress last year.