WASHINGTON (ABP) — A sharply divided Supreme Court did April 18 exactly what many pro-lifers hoped — and what many abortion-rights advocates feared. For the first time, the majority upheld a nationwide ban on a specific abortion procedure.
In a 5-4 decision, the court affirmed 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 in cases where the mother's health was at risk.
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.”
The court's previous abortion jurisprudence — including the landmark 1973 Roe v. Wade decision that first legalized abortion nationwide — had required any restrictions on abortion to include exceptions for the mother's life and health.
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, the court blesses a prohibition with no exception safeguarding a woman's health.”
The disputed procedure, known medically as “intact dilation and extraction,” involves the partial delivery of a fetus, whose skull is then punctured and its contents evacuated to make it easier to pass the head through the birth canal. Doctors say it is used only in exceedingly rare circumstances.
The Supreme Court previously struck down a state law banning the procedure. The federal Partial-Birth Abortion Ban Act — passed by Congress in 2003 and signed into law by President Bush — was at question in the latest cases. It does not provide a health exception. Instead, it cites congressional findings determining that the procedure is never medically necessary to protect a woman's health.
Many medical professionals disagreed. Kennedy said the court did not rest its decision solely on the congressional findings, as lawyers for the Bush administration had urged.
“We do not in the circumstances here place [decision-making] weight on Congress's findings” about the medical necessity of the procedure, Kennedy wrote. “The court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”
Abortion-rights supporters have argued that alternative procedures were more dangerous, and the lower federal courts agreed with their findings.
Ginsburg, in her dissent, pointed those out. “According to the expert testimony … introduced, the safety advantages of intact D&E are marked for women with certain medical conditions, for example, uterine scarring, bleeding disorders, heart disease, or compromised immune systems.” For example, she noted, the so-called “partial-birth” procedure involved fewer insertions of a medical instrument into the uterus of such an at-risk woman, whereas other in-utero abortion methods may increase the risk of bleeding.
Ginsburg also called the majority's conclusion that there was significant medical disagreement on the necessity of the procedure for such women “bewildering.” She continued: “Not only does it defy the court's longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty; it gives short shrift to the records before us, carefully canvassed by the [federal] district courts.”
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.
In an unusual move denoting strong disagreement with the majority's decision, Ginsburg read a summary of the dissenting opinion in the courtroom after Kennedy read a summary of his opinion. In it, she nodded to the role the court's new composition played in the decision.
The majority's decision “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 said. “A decision of the character the court makes today should not have staying power.”
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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Read more:
Supreme Court tackles 'partial-birth' abortion again — with 2 new justices (11/9/2006)
On Samuel Alito's first argument day, court agrees to hear abortion case (2/21/2006)