WASHINGTON (ABP) — A sharply divided Supreme Court did April 18 exactly what many pro-lifers hoped and what many abortion-rights advocates feared it would: It upheld, for the first time, a nationwide ban on a specific abortion procedure.
In a 5-4 decision, the court upheld a federal law banning a procedure that opponents label “partial-birth” abortion. In the two combined cases — Gonzales v. Carhart (No. 05-380) and Gonzales v. Planned Parenthood (No. 05-1382) — the majority disagreed with lower federal courts that said the ban was unconstitutional because it was too vague and did not allow exceptions to protect the mother's health.
Justice Anthony Kennedy, writing for the majority, said, “There is documented medical disagreement whether the act's prohibition would ever impose significant health risks on women …. The question becomes whether the act can stand when this medical uncertainty persists. The court's precedents instruct that the Act can survive this facial attack.”
But Justice Ruth Bader Ginsburg, writing for the minority, called the decision “alarming” and said the ruling “refuses to take [the court's precedents on abortion rights] seriously. 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.”
Ginsburg added, “For the first time since Roe [v. Wade, the 1973 decision that legalized abortion nationwide], the court blesses a prohibition with no exception safeguarding a woman's health.”
Kennedy was the key to the ruling. He voted in a four-justice minority to uphold a similar ban in 2000's Stenberg v. Carhart decision. But the departure of retired Justice Sandra Day O'Connor, who had voted to overturn the ban in Stenberg, sealed the case's fate. O'Connor's replacement, Justice Samuel Alito, is widely believed to oppose abortion rights. He voted in the majority, along with the court's other most recent addition, Chief Justice John Roberts.
Justices Antonin Scalia and Clarence Thomas rounded out the majority. Thomas filed a separate concurring opinion in which he said that he wrote “separately to reiterate my view that the court's abortion jurisprudence … has no basis in the Constitution.” Scalia joined that opinion, although Alito and Roberts did not.
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