Herrera’s U.S. Supreme Court Brief Blasts Federal Abortion Ban as an ‘Episode of Congressional Defiance’

High Court Urged to Uphold Lower Courts’ Rulings Finding Abortion Ban Unconstitutional

SAN FRANCISCO (Sept. 20, 2006) — City Attorney Dennis Herrera filed with the U.S. Supreme Court late today the intervenor-respondent brief in the matter of Gonzales v. Planned Parenthood, a government appeal of last January’s ruling by the Ninth Circuit U.S. Court of Appeals upholding a previous federal court decision finding the so-called “Partial Birth Abortion Ban Act” unconstitutional. The brief on behalf of the City and County of San Francisco argues that the statute should be struck down by the high court in order “to reject Congress’ attempt to usurp its constitutional authority under Marbury v. Madison,” a landmark 1803 case that established the U.S. Supreme Court as the branch of government with ultimate authority to decide what the federal constitution requires.

“This case is about much more than the constitutionally-protected right to an abortion,” Herrera’s brief argues. “It is about whether the coordinate branches of government can get away with defying the Court’s ultimate authority ‘to say what the law is.'”

Describing the Act as “an episode of Congressional defiance,” the City’s brief observes that Congress “was required to draft the Act in a manner that addressed the constitutional problems” that had been identified in a previous high court ruling. In Stenberg v. Carhart, the court held that the Constitution requires any abortion restriction to include an exception for the health of the woman. Congressional sponsors’ deliberate decision not to do so, Herrera argues, “is powerful evidence that they set out not to comply with Stenberg but to defy it.”

Herrera intervened in the case in January 2004 on behalf of San Francisco’s Department of Public Health and its employees and providers, representing the only such involvement by a government entity in the nation. As a result of the City’s intervention, the U.S. Justice Department has been enjoined from enforcing the abortion restrictions against public health care providers in the City and County of San Francisco since the first federal court ruling in June 2004.

Principally in charge of the case in the City Attorney’s Office are Chief Deputy City Attorney Therese M. Stewart, Chief Deputy for Neighborhood and Community Services Aleeta Van Runkle, and Deputy City Attorney Kathleen S. Morris, who is the counsel of record. The case is Alberto R. Gonzales v. Planned Parenthood Federation of America, Inc., et al., Supreme Court of the United States, No. 05-1382.

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