Article published April 19, 2007
U.S. SUPREME COURT
Justices tighten abortion methods
5-4 ruling upholds partial-birth ban
FROM THE BLADE’S WIRE SERVICES
WASHINGTON — The Supreme Court changed course on abortion yesterday and cleared the way for states to pass laws designed to discourage women from ending their pregnancies.
The 5-4 decision 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.
The court said the “government has a legitimate and substantial interest in preserving and promoting fetal life.” The ruling upheld a national ban on the disputed midterm abortion method that critics call partial-birth abortion.
Seven years ago, the court, also by a 5-4 margin, struck down a nearly identical state law. But the retirement of Justice Sandra Day O’Connor in 2005 and President Bush’s choice of Justice Samuel Alito, Jr., tipped the balance the other way.
The decision, the first time the court has upheld a ban on a specific method of abortion, means that doctors who perform the prohibited procedure may face criminal prosecution, fines, and up to two years in prison. The federal law, enacted in 2003, had been blocked from taking effect by the lower-court rulings that the Supreme Court overturned.
Although the opinion stopped well short of overturning the 1973 Roe vs. Wade decision guaranteeing the basic right to abortion, the majority said it was prepared to uphold new restrictions on doctors who perform them and women who seek them.
Justice Anthony Kennedy, speaking for the court, said the government may not forbid abortion outright, but it “may use its voice and its regulatory authority” to dissuade women from ending pregnancies. The ban on partial-birth abortions will “encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions,” he added.
Chief Justice John Roberts, Jr., and Justices Antonin Scalia, Clarence Thomas, and Alito joined Justice Kennedy’s opinion. In a separate statement, justices Thomas and Scalia said again they would vote to overrule Roe vs. Wade entirely.
The decision is likely to throw the abortion issue into the campaign for the White House. Two of the court’s strongest supporters of the right to abortion are also its oldest justices: John Paul Stevens will be 87 on Friday, and Ruth Bader Ginsburg is 74. Whoever wins the 2008 presidential election might get the chance to nominate one or more justices.
Justice Ginsburg, the court’s only woman, called yesterday’s decision “alarming.”
It “cannot be understood as anything other than an effort to chip away at a right declared again and again by this court,” she said.
Justice Ginsburg noted that this dispute was about how, not whether, abortions would be performed during the second trimester. Despite Justice Kennedy’s talk of “promoting fetal life,” the ban on partial-birth abortions “targets only a method of abortion,” she said. “The woman may abort the fetus, so long as her doctor uses another method, one her doctor judges less safe for her.”
She also called the decision demeaning to women. It “pretends” to protect them “by denying them any choice in the matter,” she said.
Justice Ginsburg also said the ruling failed to respect the court’s abortion precedents, including that the woman’s health should be the doctor’s “paramount consideration.”
She called the majority’s justifications “flimsy and transparent” and said they did not bother to conceal their hostility to abortion rights: “Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label ‘abortion doctor.’”
Justice Stevens and justices David Souter and Stephen Breyer joined her dissent.
The ruling culminates a 12-year campaign by the National Right to Life Committee to outlaw the procedure that its leaders first dubbed “partial-birth abortion.” They said the procedure was akin to “infanticide” because the fetus was killed just as it emerged from the mother.
The decision was a major victory for the Bush Administration and its vigorous defense of the law, which President Bill Clinton had vetoed twice before President Bush signed it.
Mr. Bush welcomed the ruling, saying: “The Supreme Court’s decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law.”
It was also a vindication for the strategic choice the anti-abortion movement made 15 years ago, when the prospect of persuading the Supreme Court to reconsider the right to abortion seemed a distant dream. By identifying the intact procedure and giving it the provocative label “partial-birth abortion,” the movement turned the public focus of the abortion debate from the rights of women to the fate of fetuses. In short order, 30 states banned the procedure.
Abortion-rights advocates voiced outrage. “Today’s ruling is a stunning assault on women’s health and the expertise of doctors who care for them,” said Nancy Northrup of the Center for Reproductive Rights. “This court believes that members of Congress — not doctors — are in the best position to make medical decisions for their patients.”
In one sense, the ruling might have more symbolic than practical significance. By most estimates, the procedure is used in less than 5,000 of the more than 1.3 million abortions performed nationwide each year.
However, the legal battle turned on the old question of whether a woman and her doctor, or elected lawmakers, should decide on abortion.
Most abortions — between 85 percent and 90 percent — are done in pregnancy’s first three months.
Later in a pregnancy, some form of surgery is required. At this stage, most doctors give the woman anesthesia and use instruments to remove the fetus, known as a “dilation and evacuation,” or D&E. It remains legal.
Some doctors who perform second-term abortions said it was safer and less risky to remove the fetus intact through partial-birth abortion because that method is less likely to expose the woman to injury, bleeding, or infection. This method has been referred to as a “dilation and extraction,” or D&X.
The procedure was made a crime by Congress in the Partial Birth Abortion Ban Act of 2003. The law allows doctors to use the banned procedure if it is needed to save the mother’s life. However, there is no exception for instances where doctors say it is needed to preserve her health.
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