Court Backs Ban on Late-Term Abortion Procedure

[Woodmonkey]

Court Backs Ban on Late-Term Abortion Procedure


The Supreme Court today narrowly upheld a nationwide ban on a controversial late-term abortion procedure, handing a major victory to President Bush and his social conservative allies.

In a 5-4 vote, the court ruled that the Partial Birth Abortion Ban Act, which Bush signed into law in 2003, does not violate a woman's right to have an abortion, which has been the law of the land since the landmark 1973 ruling in Roe v. Wade.

The dramatic decision delivered to abortion opponents the promise of a more conservative court reconstituted by Bush.

The ruling marked the first time that the court has upheld a ban on a specific abortion procedure. It also marked a departure from the Supreme Court's past practice of requiring a "health exception" in laws governing abortion to allow the procedure when a woman's health would otherwise be at risk.

Writing for the majority, Justice Anthony M. Kennedy said opponents of the ban "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." Nor, he wrote, have they shown that it is "void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception."

Justice Ruth Bader Ginsburg, now the only woman on the court, read a powerful dissent to a stone-silent courtroom that said the "alarming decision" was an effort to "chip away" at a woman's right to abortion.

Congress passed the Partial Birth Abortion Ban Act following a decision by the court in 2000 to strike down a similar ban from Nebraska because it did not include an exception for doctors to perform the procedure to protect the health of the woman. The court at that time ruled 5-4 that the law imposed an undue burden on women choosing to have an abortion.

But today's court, with the significant addition of Justice Samuel A. Alito Jr. replacing retired justice Sandra Day O'Connor, accepted Congress's view that the late-term abortion procedure is unneeded.

"The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives," Kennedy wrote.

The case did not question the Roe v. Wade decision, although two justices who joined the majority -- Clarence Thomas and Antonin Scalia -- repeated in a concurring opinion their belief that Roe"has no basis in the Constitution."

Kennedy's majority opinion described in detail the gruesome nature of the "intact dilation and extraction" technique banned in the act, and the affect it may later have on a woman who decided to abort using the method. The procedure itself is "laden with the power to devalue human life," he wrote.

"It is self-evident that a mother who comes to regret her choice and 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," Kennedy wrote.

Ginsburg responded that the majority's solution was not to insure that the woman is informed of the details of the procedure.

"Instead, the court shields women by denying them any choice in the matter," she said. "This way of protecting women recalls ancient notions about women's place in society and under the Constitution -- ideas that have long since been discredited."

The ruling was welcome news to abortion opponents who have placed their hopes in Bush's conservative nominees to the Supreme Court. Making up today's majority, in addition to Kennedy, were Bush's two picks -- Chief Justice John G. Roberts Jr. and Alito -- as well as two of the court's staunchest conservatives: Scalia and Thomas. Kennedy, who joined the court in 1988 after being nominated by President Ronald Reagan, has long been viewed as a swing vote on key issues.

Joining Ginsburg in her dissenting opinion were Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

"Today's decision is alarming," Ginsburg wrote for the minority. "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. . . . And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health."

She added: "Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices."

The 2003 ban has never taken effect because of court challenges. Six federal courts ruled that the law impermissibly restricted a woman's constitutional right to have an abortion.

Kennedy wrote in his opinion that of the approximately 1.3 million abortions performed each year in the United States, 85 to 90 percent are done during the first trimester of pregnancy, meaning that they are not regulated by the 2003 law.

The decision was welcomed warmly by abortion opponents, including Rep. John A. Boehner (R-Ohio), the House minority leader. "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," he said in a statement.

But the ruling came under sharp attack from abortion-rights and civil liberties advocates, who warned that it could lead eventually to the overturning of Roe v. Wade.

In a statement, Ralph G. Neas, president of the liberal group People for the American Way, said the ruling proves that "the confirmation of right-wing nominees to the Supreme Court has disastrous consequences for Americans' rights and liberties." He said the replacement last year of O'Connor by the "ultraconservative" Alito "has brought the Court to the brink of judicial disaster."

"Today's decision will energize a crucial public conversation with presidential candidates about the importance of future Supreme Court justices," Neas said.

E. Christopher Murray, a civil liberties attorney in New York, called the ruling "a really disturbing development for abortion rights advocates." The court "is retreating from its previous decision striking down a similar ban that did not have exceptions for the health of the mother," he said in a statement. "Thus, the new justices on the court, Roberts and Alito, have demonstrated a willingness to go against the court's prior precedents, signaling that Roe v. Wade is susceptible to being overturned."

Today's ruling came on two combined cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America.

The Source

[Woodmonkey]

Justices Back Ban on Method of Abortion


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. [Page A23.]

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.

http://www.nytimes.com/2007/04/19/wa...th&oref=slogin

[Betty Boop]

Safely a dilatation and curettage (up to 12 weeks) or dilatation and evacuation (done from 12-16 weeks) and are not illegal procedures or impacted by this Supreme Court decision and still can be done up until the 16th week of pregnancy (i.e., 16 weeks after the date of first day of the last menstrual period). Approximately 80% of all abortions in the United States are performed by D&C and 12% by D&E. This means that for only 8% of all women who would terminate a pregnancy voluntarily, the window to terminate legally has been narrowed. It also means that genetic testing and in vitro high level sonography will need to play a greater role in early prenatal care if a woman and her significant other would make the choice to terminate a pregnancy based on genetics screening and fetal development.

The Court has not so much determined a blow to abortion rights but rather has established moral and ethical guidelines into medical/surgical procedures allowed because the medical community failed to provide for itself.

[Woodmonkey]

Originally Posted by Betty Boop

It also means that genetic testing and in vitro high level sonography will need to play a greater role in early prenatal care if a woman and her significant other would make the choice to terminate a pregnancy based on genetics screening and fetal development.

In all honesty, it will be just her choice since the father has no say legally which all comes out of the original ruling.

I'm glad the Supreme Court decided this way. I think abortion is wrong, but even for people who don't agree, there can be no justification to allowing all but the child's head to be born and then killing him/her. If they waited just a minute or two and it would be infanticide.

The Court has not so much determined a blow to abortion rights but rather has established moral and ethical guidelines into medical/surgical procedures allowed because the medical community failed to provide for itself.

True.