A federal appeals court yesterday upheld a ruling by a lower court judge striking down the Partial-Birth Abortion Ban Act, which bars a method of abortion generally used after the first trimester.

The decision, by a three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, was the first that an appeals court has issued on the ban, which Congress approved in November 2003 with the strong backing of President Bush.

The ruling, written by Judge Kermit Edward Bye and joined by Judges James B. Loken and George G. Fagg, found the law unconstitutional because, while making an exception to the ban to protect the life of a pregnant woman, it made no such exception to preserve her health.

That an appeals court has now ruled on the matter moves the law one step closer to a likely review by the Supreme Court, perhaps in the coming term. In a rare point of agreement between adversaries in the abortion debate, advocates on both sides said the stakes had now been raised even further in Mr. Bush's selection of a nominee to succeed Justice Sandra Day O'Connor.

The Eighth Circuit's ruling rests heavily on a decision by the Supreme Court, which, in Stenberg v. Carhart five years ago, struck down such a ban that had been enacted by Nebraska. Before Justice O'Connor announced her retirement last week, the balance on the court in favor of a constitutional right to abortion was 6 to 3. But in Stenberg, the majority was only 5 to 4, with Justice Anthony M. Kennedy voting to sustain the state ban and Justice O'Connor's vote making the majority.

The appeals court's decision yesterday "only underscores the fact that the successor to Justice O'Connor will cast the deciding vote on whether this barbaric partial-birth-abortion practice will continue," said Douglas Johnson, legislative director of the National Right to Life Committee.

Setting up a potential clash with religious conservatives, the national business lobby for the first time is marshaling its forces to persuade the White House to pick an industry-friendly Supreme Court nominee.

Usually, corporations duck Supreme Court fights. This time, with vital interests at stake, business advocates are raising millions of dollars, plotting major lobbying campaigns, and quietly working to influence the president as he ponders a replacement for Justice Sandra Day O'Connor.

For 2 1/2 years, the U.S. Chamber of Commerce, the nation's largest business association, has privately funneled to the White House staff in-depth analyses of decisions rendered by federal appeals court judges -- the most likely pool of high court candidates. The reports, which the chamber declined to make public, grade jurists on their pro-business leanings, and none received a rating of more than 70 out of 100.

The chamber and other industry groups have also told the White House that they plan to bankroll large-scale efforts to promote the president's choice, which they see as another incentive for President Bush to take into account corporate concerns such as taxation and product liability when he makes his selection.

The aggressiveness marks a sea change in the way corporate America approaches judicial appointments. Ever-cautious companies have traditionally left the divisive, high-pressure politicking to outspoken social conservatives.

Now, business leaders are working behind the scenes to influence the process, an action that threatens to break apart the long-standing Bush coalition of corporate and social conservatives.

Posted by: Jonathan Singer / 10:50 PM | Basie! Home