Posted on 04/18/2007 8:16:26 AM PDT by fungoking
The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench. The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.
The opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases," Justice Anthony Kennedy wrote in the majority opinion.
The administration defended the law as drawing a bright line between abortion and infanticide.
The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.
Justices Clarence Thomas and Antonin Scalia also were in the majority.
It was the first time the court banned a specific procedure in a case over how — not whether — to perform an abortion.
Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although government lawyers and others who favor the ban said there are alternate, more widely used procedures that remain legal.
The outcome is likely to spur efforts at the state level to place more restrictions on abortions.
"I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life," said Rep. John Boehner (news, bio, voting record) of Ohio, Republican leader in the House of Representatives.
Said Eve Gartner of the Planned Parenthood Federation of America: "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." She had argued that point before the justices.
More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling.
Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.
The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.
"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.
Ginsburg said the latest decision "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."
She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.
The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.
Abortion opponents say the law will not reduce the number of abortions performed because an alternate method — dismembering the fetus in the uterus — is available and, indeed, much more common.
In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision.
The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.
But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.
Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.
Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.
But Kennedy said, "The law need not give abortion doctors unfettered choice in the course of their medical practice."
He said the more common abortion method, involving dismemberment, is beyond the reach of the federal ban.
While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.
Doctors most often refer to the procedure as a dilation and extraction or an intact dilation and evacuation abortion.
The law allows the procedure to be performed when a woman's life is in jeopardy.
The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.
I'd volunteer to put large forceps on her head and use an Oreck to vacuum out what little brain material she has remaining in that lefty scull of hers. Then the other three leftys.
Just lable abortion providers as “Dahmeresque.” That should help.
mark
BUMP!
You said it brother! How can ANY sane, moral & rational person think otherwise.
This so great! I love having good news for a change.
God Bless Our President and The Supreme Court.
I failed to point out the first announcement of this ban is in breaking news and has almost 500 posts now..I just post on both.
;)
This brings to fruition the long-awaited “swing vote” of Justice Kennedy on the issue. It has been long-believed that if properly presented along the lines of his own previous writings, that Justice Anthony Kennedy...who voted for the right of abortions previously...would be compelled to make those caveats he uttered more than cheap dicta.
It needs to be pointed out that we did not in fact replace any liberals or court activists on this issue. What finally happened was that Justice Kennedy was persuaded to recognize the over-breadth of the pro-abortionists claims....claims which expressly discussed in prior dicta stating where and when such claims would be invalid.
O'Conner was an activist on this issue. Kennedy has always supported a ban on partial-birth and parental notification. Kennedy was not persuaded, that has been his position. Kennedy supports a women's right to abortion, but he believes it can be regulated. O'Conner opposed any restrictions on abortions.
Good for you MEG33 This is indeed good news and a huge bump for your tag line,too.
The issue had to be precisely framed to get the result we wanted here. It had to squarely go to the issues he stated in his dissenting opinion in the Nebraska Partial Birth Abortion case. As the above-noted CSM reported in the past October:
With the possibility of the court divided 4-4 on the issue, Kennedy may wield the decisive vote. If he sticks to the analysis in his dissent in the Nebraska case, court watchers say the law will be upheld. If he adheres to his strongly held belief in stare decisis - affirming precedent even when a justice disagrees with it - the federal law will be struck down.Apparently the Chief Chustice was able to manuever the issue precisely the way it needed to go to get Kennedy to vindicate your belief that "Kennedy has always supported a ban on partial-birth and parental notification."But Kennedy's dissent in the Nebraska case suggests another possibility. In 1992, Kennedy helped author a major abortion decision, Planned Parenthood v. Casey, which reaffirmed the central holding in Roe v. Wade that established a woman's right to choose to have an abortion. Part of Kennedy's contribution to the Casey decision was a guarantee that the states could regulate abortion procedures provided the regulations didn't create a substantial obstacle to obtaining an abortion. In his dissent in the Nebraska partial-birth abortion case, Kennedy complained that the five-justice majority swept aside the guarantee he apparently wrote into the Casey opinion.
Now, six years later, Kennedy could uphold the 2003 federal law under the theory that the same leeway guaranteed to state lawmakers in the 1992 Casey decision also exists for federal lawmakers. In effect, he would be applying stare decisis to his interpretation of Casey - an interpretation that would undercut the Nebraska ruling as being an unfaithful application of the 1992 Casey precedent. One complicating factor to this scenario, however, is Justice Antonin Scalia's insistence that the Casey abortion precedent (and Roe) must be overruled.
This was a closer issue than that, and it was a slugfest that likely went down to the wire in Chambers.
Man, I would have sworn I typed Chief Justice...
Perhaps it was closer, but I was confident Kennedy would come through in this case. Kennedy was on the right side in Webster v. Reproductive Health Services that barred public facilities and public employees from performing abortions and required physicians to test for the viability of any fetus believe to be more than 20 weeks old. Kennedy was on the wrong side of Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992, but I have a feeling Kennedy vote made them weaken the ruling as he probably did in today's ruling, but on the flip side. And Kennedy was on the right side of Stenberg v. Carhart, 2000 where the court struck down a state law that banned partial-birth abortions. O'Conner was the fifth vote and Kennedy dissented. If O'Conner was still on the court, we would have unqueestionably lost today.
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