Stenberg and the Partial Birth Decision

Former Nebraska Attorney General Don Stenberg, whose name is attached to the 2000 Supreme Court case of Stenberg v. Carhart that struck down that state’s partial birth abortion ban, knows that the change in Court personnel accounts for the opposite result in today’s partial birth decision:

A U.S. Supreme Court ruling today gives Nebraska the “partial-birth” abortion ban it unsuccessfully sought seven years ago, former Attorney General Don Stenberg said.

Stenberg said the ban upheld today is similar to a Nebraska law that the high court struck down. In its ruling today, the court said the federal ban it upheld was narrower than Nebraska’s attempted ban.

He said a change in the makeup of the Supreme Court is why the ban was upheld today.

“It shows how important it is who is serving on the court and what their judicial philosophy is,” said Stenberg, who in April of 2000 appeared before the U.S. Supreme Court in support of Nebraska’s 1997 law banning “partial-birth” abortions.

Over at SCOTUSblog, Marty Lederman notes “The Profound Effects of Justice O’Connor’s Retirement” and  Lyle Dennitson reviews the angry reaction of Justice Ginsburg:

She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”

That final comment, concluding angry remarks that were delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is “differently composed than it was when we last considered a restrictive abortion regulation” — in Stenberg in 2000.

I’m far from a constitutional scholar, and I’m aware that such people write treatises on things like this, but I wonder: how can the Supreme Court set aside the 2000 partial birth decision only seven years later and permit this ban?

I understand that the 5-4 majority in today’s decision did not directly overturn Stenberg, and that the 2003 law Congress passed was slightly different from the Nebraska ban in some ways, but everyone realizes that this change happened because the makeup of the Court changed. Doesn’t that take away the respect people should have for the law when the results on contentious issues are so malleable? Or is it perfectly OK to say that elections have consequences, including this one?

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