Supreme Court Upholds Ban on Abortion Procedure

By DAVID STOUT

Published: April 18, 2007

WASHINGTON, April 18 — The Supreme Court narrowly upheld a federal law today banning a controversial abortion procedure, giving the anti-abortion movement one of its biggest legal victories in years.

Supreme Court

The justices ruled, 5 to 4, that a law passed by Congress in 2003 and signed by President Bush does not violate the Constitution by imposing an undue burden on a woman’s right to end a pregnancy. The majority said its ruling reflects the government’s “legitimate, substantial interest in preserving and promoting fetal life.”

“The act, on its face, is not void for vagueness and does not impose an undue burden from any overbreadth,” Justice Anthony M. Kennedy wrote for the court, rejecting key arguments of the law’s opponents.

The majority upheld the Partial-Birth Abortion Ban Act, whose very name can set off heated debate. The procedure addressed is known medically as “intact dilation and evacuation” or “D and X,” short for dilation and extraction. It involves partly removing an intact fetus, then destroying the skull to complete the abortion.

Doctors and other abortion-rights advocates who challenged the law maintained that the procedure is often the safest to use late in the pregnancy, because it minimizes the chances of injury to the uterus.

The court majority said that the 2003 law would not affect most abortions, which are performed early in a pregnancy; that the law does not encourage “arbitrary or discriminatory enforcement,” and that alternatives to the prohibited procedure are available. Justice Kennedy was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Critics of the law had attacked it in part because it does not provide for a broad exception to protect the health of the woman. It does, however, provide for an exception to safe a woman’s life. Justice Ruth Bader Ginsburg called the majority decision “alarming” and a retreat from the court’s earlier holdings. “It 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,” Justice Ginsburg wrote, in a dissent joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

The ruling overturned findings of several lower federal courts that had found the 2003 law unconstitutional. Today’s ruling is also a change of course from a Supreme Court ruling in 2000, when the lineup of justices was different, striking down a Nebraska law banning the procedure. Justice Kennedy was among the dissenters who would have upheld the Nebraska law.

Justice Ginsburg was so disappointed in today’s ruling that she took the highly unusual step of reading part of her dissent from the bench.

As for the fact that most abortions are performed early in pregnancy, and the majority’s assertion that alternatives to the prohibited procedure are available for later in pregnancies, Justice Ginsburg said adolescents and indigent women have more trouble obtaining an abortion early, so today’s ruling could put them at a disadvantage.

Justice Ginsburg also took issue with language in the law finding a “consensus” that the banned procedure is never necessary.

But the majority said disagreements within the medical community constituted no obstacle to the 2003 law. “The court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” Justice Kennedy wrote. “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”

Today’s decision gave the anti-abortion forces what they had hoped for with the more conservative makeup of the high court since Justice Alito replaced Justice Sandra Day O’Connor. Abortion opponents are sure to be pleased by some of the language in Justice Kennedy’s opinion, including his observation that “the government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”

The ruling is surely not the last word on abortion, either legally or politically, and it immediately reflected the deep divides that have long characterized the issue. Republicans praised the decision, while Democrats denounced it.

“I applaud the court’s decision to uphold the ban on partial-birth abortion,” said Senator Mel Martinez of Florida, chairman of the Republican National Committee, adding that the ruling “spoke highly of society’s core values to protect the sanctity of life.”

President Bush called the ruling “an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life.”

Representative John A. Boehner of Ohio, the Republican minority leader in the House of Representatives, told The Associated Press he hoped the decision would set the stage “for further progress in the fight to ensure our nation’s laws respect the sanctity of unborn human life.”

But several Democrats issued statements of disappointment. Representative Carolyn B. Maloney of New York, for example, said the ruling “will tie doctors’ hands and jeopardize women’s health.”

Eve Gartner of the Planned Parenthood Federation of America said the ruling “flies in the face of 30 years of Supreme Court precedent and the best interest of women’s health and safety.” The ruling sends the signal that “politicians, not doctors,” will make health-care decisions for women.

Abortion is sure to be an issue in the 2008 presidential campaign, and perhaps for many campaigns to come. Several Republicans seeking their party’s nomination also said they were pleased by today’s decision, while several Democrats who want to be their party’s standard-bearer had opposite reactions.

People who believe that a woman should be able to choose abortion may see today’s outcome as a threat to Roe v. Wade, the Supreme Court decision that legalized abortion under certain circumstances. Opponents hope it will pose just that kind of threat.

Roberta Combs, president of the Christian Coalition of America, said: “With today’s Supreme Court decision, it is just a matter of time before the infamous Roe v. Wade decision in 1973 will also be struck down by the court.”