[Vision2020] Supreme Court upholds partial birth abortion ban

[J Ford]

Top court upholds abortion ban

'Partial birth' law at issue; first time for justices to ban a specific 
procedure

The Associated Press
Updated: 3:41 p.m. PT April 18, 2007

WASHINGTON - The Supreme Court's conservative majority upheld a nationwide 
ban Wednesday on a controversial abortion procedure in a decision that sets 
the stage for additional restrictions on a woman's right to choose.

For the first time since the court established a woman's right to an 
abortion in 1973, the justices said the Constitution permits a nationwide 
prohibition on a specific abortion method. The court's liberal justices, in 
dissent, said the ruling chips away at abortion rights.

The 5-4 decision written by Justice Anthony Kennedy said the Partial Birth 
Abortion Ban Act that Congress passed and President Bush signed into law in 
2003 does not violate a woman's constitutional right to an abortion.

Siding with Kennedy were Bush's two appointees, Chief Justice John Roberts 
and Justice Samuel Alito, along with Justices Antonin Scalia and Clarence 
Thomas.

The law is constitutional despite not containing an exception that would 
allow the procedure if needed to preserve a woman's health, Kennedy said. 
"The law need not give abortion doctors unfettered choice in the course of 
their medical practice," he wrote in the majority opinion.

Doctors who violate the law face up to two years in federal prison. The law 
has never taken effect, pending the outcome of the legal fight.

Kennedy's opinion was a long-awaited resounding win that abortion opponents 
expected from the more conservative bench.

In dissent, Justice Ruth Bader Ginsburg said the ruling "cannot be 
understood as anything other than an effort to chip away at a right declared 
again and again by this court."

Dr. LeRoy Carhart, the Bellevue, Neb., doctor who challenged the federal 
ban, said, "I am afraid the Supreme Court has just opened the door to an 
all-out assault on" the 1973 ruling in Roe. Wade.

The administration defended the law as drawing a bright line between 
abortion and infanticide.

Bush 'pleased'-
Reacting to the ruling, Bush said that it affirms the progress his 
administration has made to defend the "sanctity of life."

"I am pleased that the Supreme Court has upheld a law that prohibits the 
abhorrent procedure of partial birth abortion," he said. "Today's decision 
affirms that the Constitution does not stand in the way of the people's 
representatives enacting laws reflecting the compassion and humanity of 
America."

It was the first time the court banned a specific procedure in a case over 
how - not whether - to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians 
and gynecologists have said the procedure sometimes is the safest for a 
woman. They also said that such a ruling could threaten most abortions after 
12 weeks of pregnancy, although Kennedy said alternate, more widely used 
procedures remain legal.

Action at state level likely-
The outcome is likely to spur efforts at the state level to place more 
restrictions on abortions.

"I applaud the Court for its ruling today, and my hope is that it sets the 
stage for further progress in the fight to ensure our nation's laws respect 
the sanctity of unborn human life," said Rep. John Boehner of Ohio, 
Republican leader in the House of Representatives.

Jay Sekulow, a prominent abortion opponent who is chief counsel for the 
conservative American Center for Law and Justice, said, "This is the most 
monumental win on the abortion issue that we have ever had."

Said Eve Gartner of the Planned Parenthood Federation of America: "This 
ruling flies in the face of 30 years of Supreme Court precedent and the best 
interest of women's health and safety. ... This ruling tells women that 
politicians, not doctors, will make their health care decisions for them." 
She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, 
according to recent statistics. Nearly 90 percent of those occur in the 
first 12 weeks of pregnancy, and are not affected by Wednesday's ruling. The 
Guttmacher Institute says 2,200 dilation and extraction procedures - the 
medical term most often used by doctors - were performed in 2000, the latest 
figures available.

Six federal courts have said the law that was in focus Wednesday is an 
impermissible restriction on a woman's constitutional right to an abortion.

Ginsburg writes dissent-
"Today's decision is alarming," Ginsburg wrote in dissent for the court's 
liberal bloc. She said the ruling "refuses to take ... seriously" previous 
Supreme Court decisions on abortion.

Ginsburg said the latest decision "tolerates, indeed applauds, federal 
intervention to ban nationwide a procedure found necessary and proper in 
certain cases by the American College of Obstetricians and Gynecologists."

Ginsburg said that for the first time since the court established a woman's 
right to an abortion in 1973, "the court blesses a prohibition with no 
exception safeguarding a woman's health."

She was joined by Justices Stephen Breyer, David Souter and John Paul 
Stevens.

The procedure at issue involves partially removing the fetus intact from a 
woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions 
performed because an alternate method - dismembering the fetus in the uterus 
- is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a 
state ban on partial-birth abortions in a challenge also brought by Carhart. 
Writing for a 5-4 majority at that time, Justice Breyer said the law imposed 
an undue burden on a woman's right to make an abortion decision in part 
because it lacked a health exception.

The Republican-controlled Congress responded in 2003 by passing a federal 
law that asserted the procedure is gruesome, inhumane and never medically 
necessary to preserve a woman's health. That statement was designed to 
overcome the health exception to restrictions that the court has demanded in 
abortion cases.

But federal judges in California, Nebraska and New York said the law was 
unconstitutional, and three appellate courts agreed. The Supreme Court 
accepted appeals from California and Nebraska, setting up Wednesday's 
ruling.

Kennedy's dissent in 2000 was so strong that few court watchers expected him 
to take a different view of the current case.

Kennedy acknowledged continuing disagreement about the procedure within the 
medical community. In the past, courts have cited that uncertainty as a 
reason to allow the disputed procedure.

"The medical uncertainty over whether the Act's prohibition creates 
significant health risks provides a sufficient basis to conclude ... that 
the Act does not impose an undue burden," Kennedy said Wednesday.

While the court upheld the law against a broad attack on its 
constitutionality, Kennedy said the court could entertain a challenge in 
which a doctor found it necessary to perform the banned procedure on a 
patient suffering certain medical complications.

The law allows the procedure to be performed when a woman’s life is in 
jeopardy.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned 
Parenthood, 05-1382.

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