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WASHINGTON -- The Supreme Court on Tuesday accepted the Bush administration's request to review a 2003 federal ban on a procedure known by its critics as "partial birth" abortion, setting up a major test of abortion rights at the newly changed high court.
The administration is appealing a lower-court ruling that struck down the law because it lacked an exception if a physician believes the procedure is necessary to preserve the woman's health. The ban on the method, which involves partially delivering the fetus before collapsing the skull, has never been enforced because of the litigation.
The justices will hear arguments in the fall.
The last time the justices took up a case involving this procedure was in 2000. The court by one vote invalidated a state prohibition because it lacked a health exception for the mother. The swing vote in that case was Justice Sandra Day O'Connor, who recently retired.
Justice Samuel Alito, who succeeded O'Connor on Jan. 31, and Chief Justice John Roberts, who replaced William Rehnquist on Sept. 29, had in the past expressed support for greater government latitude to regulate abortion.
Because of the new justices and the controversy over the right to abortion established by the high court in 1973, activists on both sides had been watching whether the court would take up the federal ban.
"We fear the new court is ready to further undermine a woman's access to legal abortion," said Jennifer Brown of Legal Momentum, an abortion rights group.
"We are hopeful that the court will reverse course and repudiate its 2000 decision," said Denise Burke of Americans United for Life, which opposes abortion rights.
The case arises as state legislatures step up efforts to regulate abortion and emphasize the rights of a fetus over a woman's right to an abortion.
At issue in the current dispute, begun by a Nebraska physician, is a July ruling by the U.S. Court of Appeals for the 8th Circuit saying it had to follow the high court's 2000 decision.
"In the absence of new evidence ... we are bound by the Supreme Court's conclusion that 'substantial medical authority' supports ... a health exception," the appeals court said. Two other lower courts ruled against the federal ban last month.
But Congress, in passing the 2003 law, asserted that the procedure is "never" necessary to preserve a woman's health, U.S. Solicitor General Paul Clement noted in his appeal.
Lawyers at the Center for Reproductive Rights, representing LeRoy Carhart and other physicians challenging the federal ban, noted the 8th Circuit said Congress lacked medical grounds for its findings.
Nancy Northup, president of the center, said she believes the justices will require a health exception: "We think the court will show proper respect for its precedent."
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