Two Federal Courts Strike Down Partial Birth Abortion Bans

The 2d Circuit (covering New York, Vermont and Connecticut) and the 9th Circuit. They both struck it down because there was no exception for the life and health of the mother, so it the statute couldn't be saved by a narrower remedy.

Which, of course, sets us up for a Supreme Court battle. Roe v. Wade afficionados need not fear; even with Alito's confirmation today, conservatives don't have the votes to ban abortion outright. But as I've noted before, the narrow issue of partial birth abortion has come before the Supremes before (Stenberg v. Carhart, 2000). Justice Anthony Kennedy voted with the dissent in that one, to uphold the ban. If he sticks with his guns, then along with Scalia, Thomas, Alito and Roberts, that's five, and a bare majority to overturn Stenberg. Which, as far as I'm concerned, would be a pretty great thing, as I've never read anything to suggest that partial birth abortion is ever medically necessary to protect the life or health of the mother, so such an exception is the height of ridiculousness.

But note that I said "if" Kennedy sticks to his guns. Kennedy has been trending left for some time now, and I suspect he'd really enjoy taking O'Connor's "swing vote" crown (as suggested in this MSNBC piece, which was mostly pap, but may be dead on about Kennedy).