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On the U.S. Supreme Court’s first official day of business after Justice Samuel A. Alito Jr. replaced Sandra Day O’Connor, the Court agreed to revisit the contentious issue of whether a ban on partial�birth abortion is constitutional. Because O’Connor provided the dispositive fifth vote to declare Nebraska’s ban on partial�birth abortion unconstitutional, many believe that the Supreme Court in O’Connor’s absence is now likely to reverse course and uphold the constitutionality of the federal Partial�Birth Abortion Ban Act of 2003 after hearing oral argument later this year.

Three different federal appellate courts have examined the constitutionality of this controversial federal law, and all three have held the law unconstitutional based on the U.S. Supreme Court’s ruling, issued in 2000, in the Nebraska case. But while reaching the same outcome, these federal appellate courts did not employ identical reasoning. And on one three�judge panel, a majority expressed its profound dissatisfaction with the Supreme Court’s current abortion jurisprudence.

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