Court Backs Ban on Abortion Procedure
By William Branigin and Robert Barnes
Washington Post Staff Writers
Wednesday, April 18, 2007; 7:06 PM
The Supreme Court today narrowly upheld a nationwide ban on a controversial abortion procedure, handing a major victory to President Bush and his social conservative allies. In a 5-4 vote, the court ruled that the Partial-Birth Abortion Ban Act, which Bush signed into law in 2003, does not violate a woman's right to have an abortion under the court's landmark 1973 ruling in Roe v. Wade. The dramatic decision delivered to abortion opponents the promise of a more conservative court as reconstituted by Bush, who praised the majority's rejection of what he called an "abhorrent procedure" and suggested that he would continue working for greater restrictions on abortion. The ruling marked the first time that the court has upheld a ban on a specific abortion procedure. It also marked a departure from the Supreme Court's past practice of requiring a "health exception" in laws governing abortion to allow the procedure when a woman's health would otherwise be at risk. Writing for the majority, Justice Anthony M. Kennedy said opponents of the ban "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." Nor, he wrote, have they shown that it is "void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception." Justice Ruth Bader Ginsburg, now the only woman on the court, read a powerful dissent to a stone-silent courtroom that said the "alarming decision" was an effort to "chip away" at a woman's right to abortion. Congress passed the Partial-Birth Abortion Ban Act following a decision by the court in 2000 to strike down a similar ban from Nebraska because it did not include an exception for doctors to perform the procedure to protect the health of the woman. The court at that time ruled 5-4 that the law imposed an undue burden on women choosing to have an abortion. But today's court, with the addition of Justice Samuel A. Alito Jr. replacing retired Justice Sandra Day O'Connor, accepted Congress's view that the abortion procedure is unneeded. "The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives," Kennedy wrote. The case did not question the Roe v. Wade decision, although two justices who joined the majority -- Clarence Thomas and Antonin Scalia -- repeated in a concurring opinion their belief that Roe"has no basis in the Constitution." Kennedy's majority opinion described in detail the gruesome nature of the "intact dilation and extraction" technique banned in the act, and the effect it may later have on a woman who decided to abort using the method. The procedure itself is "laden with the power to devalue human life," he wrote. "It is self-evident that a mother who comes to regret her choice and to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form," Kennedy wrote. Ginsburg responded that the majority's solution was not to insure that the woman is informed of the details of the procedure. "Instead, the court shields women by denying them any choice in the matter," she said. "This way of protecting women recalls ancient notions about women's place in society and under the Constitution -- ideas that have long since been discredited." The ruling buoyed abortion opponents who have placed their hopes in Bush's conservative nominees to the Supreme Court. Making up today's majority, in addition to Kennedy, were Bush's two picks -- Chief Justice John G. Roberts Jr. and Alito -- as well as two of the court's staunchest conservatives: Scalia and Thomas. Kennedy, who joined the court in 1988 after being nominated by President Ronald Reagan, has long been viewed as a swing vote on key issues. Joining Ginsburg in her dissenting opinion were Justices John Paul Stevens, David H. Souter and Stephen G. Breyer. "Today's decision is alarming," Ginsburg wrote. "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. . . . And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health." She added: "Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices." The 2003 ban has never taken effect because of court challenges. Six federal courts ruled that the law impermissibly restricted a woman's constitutional right to have an abortion. Kennedy wrote in his opinion that of the approximately 1.3 million abortions performed each year in the United States, 85 to 90 percent are done during the first trimester of pregnancy, meaning that they are not regulated by the 2003 law. Under the act, doctors who perform the prohibited procedure face up to two years in prison. However, the penalty "does not apply to a partial-birth abortion that is necessary to save the life of a mother" when she is endangered by a physical disorder, illness or injury, including a condition resulting from the pregnancy, the law says. In a statement welcoming today's ruling, Bush said: "I am pleased that the Supreme Court upheld a law that prohibits the abhorrent procedure of partial-birth abortion. 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. The partial-birth abortion ban, which an overwhelming bipartisan majority in Congress passed and I signed into law, represents a commitment to building a culture of life in America." Bush also called the decision "an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life." He vowed, "We will continue to work for the day when every child is welcomed in life and protected in law." Other abortion opponents concurred. Among them was Rep. John A. Boehner (R-Ohio), the House minority leader, who said in a statement that he hopes the ruling "sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life." Rep. Christopher H. Smith (R-N.J.), co-chairman of the Bipartisan Congressional Pro-Life Caucus, said the ruling begins the process of scrutinizing the "violence of abortion," which he described as a human rights violation. "Women deserve non-violent, life-affirming, positive alternatives to abortion," he said. "Since 1973, almost 49 million babies have been slaughtered by what is euphemistically called choice, making abortion a weapon of mass destruction." But the ruling came under sharp attack from abortion rights and civil liberties advocates, who warned that it could lead eventually to the overturning of Roe v. Wade. "I am disappointed," House Speaker Nancy Pelosi (D-Calif.) said in a statement. "Criminalizing doctors for performing medically necessary procedures to save a woman's life or protect her health is wrong. The court's decision is a significant step backwards." Sen. Hillary Rodham Clinton (D-N.Y.) said, "This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman's right to choose and recognized the importance of women's health." Rep. Louise M. Slaughter (D-N.Y.) said the Supreme Court "effectively stated that politicians -- and not doctors -- are the ones who will be deciding what is best for women in regards to their reproductive health." Rep. Diana DeGette (D-Colo.) said the ruling represents "a dangerous step towards restricting the right of choice that women have had for more than 30 years." Ralph G. Neas, president of the liberal group People for the American Way, said the ruling proves that "the confirmation of right-wing nominees to the Supreme Court has disastrous consequences for Americans' rights and liberties." He said the replacement last year of O'Connor by the "ultraconservative" Alito "has brought the Court to the brink of judicial disaster." Nancy Keenan, president of NARAL Pro-Choice America, expressed similar sentiments, saying Bush's appointees "have moved the Court in a direction that could further undermine Roe v. Wade and protections for women's health." She charged that the high court "has given anti-choice state lawmakers the green light to open the flood gates and launch additional attacks on safe, legal abortion, without any regard for women's health." E. Christopher Murray, a civil liberties attorney in New York, called the ruling "a really disturbing development for abortion rights advocates." The court "is retreating from its previous decision striking down a similar ban that did not have exceptions for the health of the mother," he said in a statement. "Thus, the new justices on the court, Roberts and Alito, have demonstrated a willingness to go against the court's prior precedents, signaling that Roe v. Wade is susceptible to being overturned." Today's ruling came on two combined cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America. |
