Select Page

The Justice Department, in its first formal filing in court interpreting the Supreme Court’s April 18 ruling upholding a federal ban on an abortion procedure, told a federal appeals court on Thursday that the ruling sweeps so broadly that challengers should not be allowed to pursue claims that the Supreme Court did not resolve.

The government submitted a nine-page supplemental letter brief in National Abortion Federation v. Gonzales to the Second Circuit.

In its most significant argument to the Second Circuit Court, the Department suggested that the opponents of the 2003 Partial-Birth Abortion Ban Act be barred from bringing any new case contending that the ban violates women’s constitutional right to equality.

That is an argument that got the implied support of Justice Ruth Bader Ginsburg in her dissent from the April 18 ruling. Her dissent might have led pro-abortion groups to try that theory as an alternative way of contesting the ban now that their facial challenge has failed on a due process complaint.

Although the Carhart decision did not address the equal protection argument, the Department contended: “The Supreme Court’s decision in Carhart that the Act does not violate the due process clause of the Fifth Amendment does not leave any room for plaintiffs to turn around and argue that the Act violates the equal protection component of the same clause.”

Moreover, it argued, the Supreme Court has always based the so-called right to abortion on due process, not equal protection, principles.

[14May07,, Washington, DC]