Supreme Court allows ban on some abortions
Posted on Thursday, April 19, 2007
WASHINGTON — The Supreme Court on Wednesday upheld a national ban on partialbirth abortions and ruled that the government has “a legitimate and substantial interest in preserving and promoting fetal life.” The 5-4 decision marks the first time the court has upheld a ban on an abortion procedure.
Wednesday’s ruling does not directly challenge the basic right to abortion set in Roe v. Wade, but it gives states and the federal government more leeway to impose “reasonable regulations” on abortion doctors.
Speaking for the court majority, Justice Anthony Kennedy wrote that the government has “an interest in promoting respect for human life at all stages in the pregnancy. The law need not give abortion doctors unfettered choice in the course of their medical practice.” Kennedy said the ban on partial-birth abortions may “encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.” Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito joined Kennedy’s opinion.
Scalia and Thomas wrote separately to reiterate their view that the Constitution doesn’t protect abortion rights.
The court had said the law may not threaten the health of women seeking abortions. That reasoning was used in striking down a similar Nebraska ban on partial-birth abortions seven years ago.
Kennedy described Wednesday’s decision as faithful to the court’s earlier rulings, including the one in the Nebraska case. He said that by defining partial-birth abortion more precisely, the federal law avoided the vagueness the court had found in the Nebraska statute and thus did not place doctors at risk of violating it inadvertently.
Congress passed the law in response to the court’s ruling in the Nebraska case, responding specifically to the majority’s insistence in that case that the law must include an exception for circumstances when partial-birth abortion was necessary for the sake of a pregnant woman’s health. Congress provided an exception only to save a pregnant woman’s life, as Nebraska had, declaring that partial-birth abortion was never necessary for a woman’s health.
Kennedy, in addressing the need for the health exception, said Wednesday that it was acceptable for Congress not to include one because there was “medical uncertainty” over whether partialbirth abortion was ever necessary for the sake of a woman’s health. He said that pregnant women or their doctors could assert an individual need for a health exception by going to court to challenge the law as it applied to them.
In dissent, Justice Ruth Bader Ginsburg called the 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.
Justices Stephen Breyer, John Paul Stevens and David Souter joined her dissent.
The ruling came in a pair of cases — Gonzales v. Carhart and Gonzales v. Planned Parenthood — brought by several doctors and the Planned Parenthood Federation of America to challenge the federal law. Six lower courts following the court’s 2000 Nebraska decision had ruled that the law was unconstitutional. Appeals by the Bush administration put the two cases, originally filed in Nebraska and California, before the high court.
Wednesday’s ruling culminates a 12-year campaign by the National Right to Life Committee to outlaw partial-birth abortion.
Most abortions — between 85 percent to 90 percent — are done in the first three months of pregnancy, and the fetus is removed through a suction tube. But 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 in pieces. This is known as a “dilation and evacuation,” or D&E.
Some doctors believed it was safer and less risky to remove the fetus intact. They said this resulted in less chance of injury, bleeding or infections. Usually doctors would crush the skull or drain its content to permit its removal. This method has been referred to as a “dilation and extraction,” or D&X.
D&X was made a crime by Congress in the Partial Birth Abortion Ban Act of 2003. Advocates said it was akin to infanticide because the unborn child could be alive when being removed and its skull crushed. Doctors who violate the law face as much as two years in prison.
Kennedy made clear he found partial-birth abortion abhorrent as well. Speaking in the court, he said some women regret their decision to have an abortion. Such a woman would suffer “grief more anguished and sorrow more profound when she learns, only after the event, that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child.” Abortion rights advocates argued that the federal law was unconstitutional because — like the Nebraska statute — it did not make an exception for cases where a woman’s health is at risk. They argued that in some cases, the technique is the best and safest option for pregnant women.
Attorneys for supporters of abortion rights also argued that the law’s description of the procedure was so vague that it could be interpreted to cover other more common abortion techniques. Fearing prosecution, doctors might forgo that abortion method, they said.
The Supreme Court’s majority dismissed those claims.
The Nebraska ban was struck down seven years ago, but the retirement of Justice Sandra Day O’Connor and President Bush’s choice of Alito tipped the balance in favor of the ban on partial-birth abortion.
Bush, in a statement issued by the White House, welcomed the decision. “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,” 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.” Eve Gartner, a lawyer with the Planned Parenthood Federation of American who argued against the law before the court in November, said, “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.” Information for this article was contributed by David G. Savage of the Los Angeles Times, Jennifer A. Dlouhy of Hearst Newspapers, Greg Stohr of Bloomberg News and Linda Greenhouse of The New York Times.
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