In Reversal, Justices
Back Ban
on Method of Abortion
By LINDA GREENHOUSE,
NYTimes on the Web, April 19, 2007
WASHINGTON, April 18 — The
Supreme Court reversed course on abortion on Wednesday, upholding the federal
Partial-Birth Abortion Ban Act in a 5-to-4 decision that promises to reframe the
abortion debate and define the young Roberts court.
The most important vote was that of the newest justice, Samuel A. Alito Jr. In
another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day
O’Connor, voted to strike down a similar state law. Justice Alito’s vote
to uphold the federal law made the difference in the outcome announced
Wednesday.
The decision, the first in which 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.
The banned procedure, known medically as “intact dilation and extraction,”
involves removing the fetus in an intact condition rather than dismembering it
in the uterus. Both methods are used to terminate pregnancies beginning at
about 12 weeks, after the fetus has grown too big to be removed by the suction
method commonly used in the first trimester, when 85 percent to 90 percent of
all abortions take place.
While the ruling will thus have a direct impact on only a relatively small
subset of abortion practice, the decision has broader implications for abortion
regulations generally, indicating a change in the court’s balancing of the
various interests involved in the abortion debate.
Most notable was the emphasis in the majority opinion, by Justice Anthony M.
Kennedy, on the implication of abortion’s “ethical and moral concerns.”
“The act expresses respect for the dignity of human life,” Justice Kennedy said.
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.
The decision on Wednesday came seven years after the court struck down one of
those state laws, from Nebraska. Justice Kennedy was a strong dissenter
from that decision. With Justice Alito’s vote, he was in a position this
time to write not for the dissenters but for the new majority.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence
Thomas also voted in the majority. Justices Thomas and Scalia also filed a
brief concurring opinion reiterating their opposition to the court’s abortion
precedents and expressing their continued desire to overturn them.
Neither Chief Justice Roberts nor Justice Alito signed this statement.
There was no way of knowing whether their silence meant they disagreed with it
or whether, not having previously expressed their views as Justices Thomas and
Scalia had, they had no need at this point to stake their ground.
The court did not explicitly overturn any of its precedents, although Justice
Ruth Bader Ginsburg, writing for the four dissenters, said the decision was “so
at odds with our jurisprudence” that it “should not have staying power.”
Justice Ginsburg called the decision “alarming” and said the majority’s
“hostility” to the right to abortion was “not concealed.”
Justices John Paul Stevens, David H. Souter and Stephen G. Breyer signed Justice
Ginsburg’s opinion, portions of which she read from the bench at a slow pace
that caused every syllable to resonate.
Justice Kennedy took pains to describe the decision as faithful to the court’s
earlier rulings, including the one in the Nebraska case. He said that by
defining the prohibited procedure 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 the banned procedure 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
the procedure was never necessary for a woman’s health.
Justice Kennedy, in addressing the need for the health exception, said on
Wednesday that it was acceptable for Congress not to include one because there
was “medical uncertainty” over whether the banned procedure 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.
Justice Ginsburg said that this approach was unrealistic and “gravely mistaken.”
She said that requiring “piecemeal” litigation “jeopardizes women’s health and
places doctors in an untenable position.”
Clarke D. Forsythe, president of Americans United for Life, a leading
anti-abortion group, said approvingly that while the court did not technically
overturn the Nebraska decision, the new ruling “effectively gutted it.”
Dr. LeRoy H. Carhart, the Nebraska doctor who challenged both the state law in
2000 and the federal law in this case, Gonzales v. Carhart, No. 05-380,
said that “those who support this law are trying to outlaw all abortions, one
step at a time.”
In his discussion of the court’s precedents, Justice Kennedy went so far as to
suggest that the new ruling was in fact compelled by the court’s decision in Planned
Parenthood v. Casey, the 1992 case that reaffirmed the basic holding of
Roe v. Wade that women have a constitutional right to abortion.
Justice Kennedy supported that result and helped write the decision’s unusual
joint opinion.
On Wednesday, he said that “whatever one’s views concerning the Casey joint
opinion, it is evident a premise central to its conclusion — 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” that struck down the federal law.
In describing the federal law’s justifications, Justice Kennedy said that
banning the procedure was in fact good for women, protecting them against
terminating their pregnancies by a method they might not fully understand in
advance and would come to regret later.
“Respect for human life finds an ultimate expression in the bond of love the
mother has for her child,” he said, adding: “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.”
Justice Ginsburg objected vehemently that “this way of thinking reflects ancient
notions of women’s place in the family and under the Constitution — ideas that
have long since been discredited.”
She cited century-old Supreme Court cases that upheld a paternalistic view of
women’s place in society and contrasted those with more recent cases, including
one she successfully argued to the court in 1977 and one in which she wrote the
majority opinion in 1996, that rejected “archaic and overbroad generalizations”
and assumptions about women’s inherent dependency.
One law professor, Martin S. Lederman of Georgetown University, commented after
reading Justice Ginsburg’s response on this point that Justice Kennedy’s opinion
“was an attack on her entire life’s work.”
In her opinion, Justice Ginsburg said the majority had provided only “flimsy and
transparent justifications” for upholding the law, which she noted “saves not a
single fetus from destruction” by banning a single method of abortion.
“One wonders how long a line that saves no fetus from destruction will hold in
face of the court’s ‘moral concerns,’ ” she said.
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