U.S. Supreme Court upholds partial-birth abortion ban

WASHINGTON (BP)--The U.S. Supreme Court upheld a federal ban on a gruesome procedure known as partial-birth abortion April 18, delivering an important victory for legislative efforts to protect unborn children.

The high court's 5-4 decision reversed rulings by two federal appeals courts and affirmed the Partial-birth Abortion Ban Act as the law of the land, marking the first judicially approved restriction on a specific procedure since the justices legalized abortion in 1973. The 2003 law prohibits an abortion technique that involves the killing of a nearly totally delivered baby normally in at least the fifth month of pregnancy.

Chief Justice John Roberts joined Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito in the majority. Kennedy, who affirmed the court's 1973 Roe v. Wade decision in a crucial 1992 ruling, wrote in the majority opinion that the ban does not infringe on the right to abortion declared previously by the high court, meaning Roe remains in effect. He said the ban is not vague and does not impose "an undue burden on a woman's right to abortion" based on it being either overly broad or lacking an exception for the mother's health.

Associate Justice Ruth Bader Ginsburg sharply disagreed in her dissent, calling the decision a retreat from previous rulings. She said the opinion was "alarming," and she described as "irrational" the idea the law advanced a "legitimate governmental interest." Associate Justices John Paul Stevens, David Souter and Stephen Breyer joined Ginsburg in the minority.

President Bush, who nominated Roberts and Alito to the high court, said he was pleased with the ruling, calling it 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."

The stark contrasts on the court were mirrored in the reactions of pro-life and pro-choice advocates.

"This is a great day for justice. This is a great day for the unborn. And this is a great day for America," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.

The Susan B. Anthony List, which seeks to help elect pro-life women to Congress, called the ruling a "watershed moment for the pro-life movement." The organization's statement said the decision "will likely inspire increased support for more common-sense restrictions on abortion across the country."

Rep. Chris Smith, R.-N.J., a congressional pro-life leader, said, "Finally, the high court has found its voice and used its authority to defend helpless children and their vulnerable mothers from the violence of abortion. Scrutiny must be brought to bear on the methods of abortion. The discussion of partial-birth abortion begins that process."

Meanwhile, abortion-rights organizations criticized the decision.

Americans "should be absolutely outraged by this unprecedented and dangerous intrusion into the private relationship between a woman and her doctor," said Joan Malin, president of Planned Parenthood of New York City. "Planned Parenthood will comply with the law. But our doors are not closed."

The ERLC's Land and abortion-rights supporters agreed the decision demonstrated one thing –- elections have consequences. Bush's re-election in 2004 enabled him to nominate Roberts to replace the late Chief Justice William Rehnquist and Alito to take the seat of Associate Justice Sandra Day O'Connor upon her retirement, both in 2005. Alito's presence on the court made the difference in the ruling, since O'Connor had voted to strike down a similar state law in a 5-4 decision in 2000.

"Today's decision shows Bush's appointees have moved the court in a direction that could further undermine Roe v. Wade and protections for women's health," said Nancy Keenan, president of NARAL Pro-choice America. "We need to elect more pro-choice members of Congress and a president who will stand up for -– not attack -– our fundamental values of freedom and privacy."

Land said, "Thank God for President Bush, and thank God for Chief Justice John Roberts and Associate Justice Samuel Alito.

"If Al Gore or John Kerry, rather than President George W. Bush, had made the nominations to replace the late Chief Justice William Rehnquist and retired Associate Justice Sandra Day O'Connor, then this monstrous partial-birth abortion procedure would have likely been upheld by the highest court as constitutional in the land in a 6-3 vote, rather than being struck down 5-4," Land said. "It would have been a decade or more before there would have been an opportunity to change the balance of the court in favor of this monumental step for justice for our partially born and unborn citizens."

The Partial-birth Abortion Ban Act bars a procedure in which, as typically used, an intact baby is delivered feet first until only the head is left in the birth canal. The doctor pierces the base of the infant's skull with surgical scissors before inserting a catheter into the opening and suctioning out the brain, killing the baby. The technique provides for easier removal of the baby's head. The law allows an exception if the mother's life is threatened.

Congress approved the ban in 2003 with a 64-34 vote in the Senate and a 281-142 vote in the House of Representatives. Congress had twice adopted partial-birth abortion bans in the 1990s only to have President Clinton veto them. In both 1996 and 1998, the House achieved the two-thirds majorities necessary to override vetoes, but the Senate fell short.

After Bush signed the bill into law in November 2003, abortion rights organizations quickly challenged it in three courts and blocked its enforcement. Federal judges in New York City, San Francisco and Lincoln, Neb., struck down the law. Three-judge panels in the Ninth Circuit based in San Francisco, Eighth Circuit based in St. Louis, and Second Circuit based in New York upheld the lower court decisions.

In his opinion, Kennedy said the high court had previously found that the government has an interest in protecting unborn life. He also said there are other abortion methods doctors may use instead of the partial-birth procedure, even though they may be as grisly, and the law's lack of an exception for the health of the mother is acceptable.

It is clear that a primary assumption in the 1992 Casey v. Planned Parenthood decision -– "that the government has a legitimate and substantial interest in preserving and promoting fetal life -- would be repudiated were the Court now to affirm the judgments of the Courts of Appeals," Kennedy wrote. The Casey opinion reasserted the Roe opinion legalizing abortion while upholding a state's authority to enact some restrictions.

"Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn," he wrote.

Doctors had testified in federal courts that they often do not describe either a technique known as dilation and evacuation (D&E) or the partial-birth procedure to women seeking abortions, and Kennedy said the government has an interest in making certain women are "well-informed."

"It is self-evident that a mother who comes to regret her choice 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," he wrote. "It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions."

Kennedy said the federal law differed from the Nebraska ban that was struck down by the justices in 2000. The federal ban provides a specific definition of partial-birth abortion and does not encompass D&E abortions. In his opinion, Kennedy referred to the partial-birth technique as "intact D&E" to distinguish it from D&E. Partial-birth abortion also has been named "dilation and extraction" (D&X).

Kennedy also quoted a nurse who had witnessed a partial-birth abortion.

"The baby’s little fingers were clasping and unclasping, and his little feet were kicking," the nurse was quoted as saying. "Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp. … He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used."

Ginsburg acknowledged in her dissent that the decision "does not go so far as to discard Roe or Casey," but it is "hardly faithful" to principles spelled out by the high court in the past. "Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman's health," she said.

"In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives," Ginsburg wrote.

The ruling finally provided pro-lifers with a victory over the dilemma created by the courts regarding a health exception for mothers. That judicial requirement has frustrated attempts to enact a meaningful prohibition on the partial-birth procedure. Until now, the problem that advocates of the ban had been unable to solve was this: If they pass a partial-birth abortion ban without a health exception, the courts strike it down; if they approve a ban with a health exception, it is ineffective because of the judiciary's definition of "health."

In its 1973 Doe v. Bolton opinion, which accompanied the Roe decision, the Supreme Court defined maternal health so expansively that it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.

In addition to joining the majority opinion, Thomas and Scalia agreed on a concurring opinion that was barely one page long. Thomas said he wrote the concurrence "to reiterate my view that the Court's abortion jurisprudence, including [Roe and Casey], has no basis in the Constitution."

The justices' decision came in two cases, Gonzales v. Carhart, an appeal from the Eighth Circuit Court of Appeals in which the law was invalidated based on its lack of a health exception, and Gonzales v. Planned Parenthood, out of the Ninth Circuit, which also said the ban imposes an undue burden on women and is too vague.

The ERLC signed on to a friend-of-the-court brief in support of the ban in the Gonzales v. Carhart case. The U.S. Conference for Catholic Bishops wrote the brief, which was joined by other religious organizations as well.

The Southern Baptist Convention approved resolutions condemning the partial-birth procedure in both 1996 and 2002.


With reporting by Michael Foust.

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