U.S. Supreme Court Upholds Ban on Late-Term Abortion Method

The Supreme Court on Wednesday ruled 5-4 to reinstate a federal law banning so-called "partial-birth" abortion, overturning the rulings of three appeals courts, the New York Times reports (Greenhouse, New York Times, 4/19).

Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia joined Justice Anthony Kennedy in the majority opinion and Justices Stephen Breyer, John Paul Stevens and David Souter joined Justice Ruth Bader Ginsburg in the dissent, the Boston Globe reports (Savage, Boston Globe, 4/19).

President Bush signed the Partial-Birth Abortion Ban Act (S 3) into law in November 2003. The Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation, and the Center for Reproductive Rights on behalf of four abortion providers filed lawsuits alleging that the law is unconstitutional because of the absence of an exception for procedures preformed to protect the health of the pregnant woman.

In place of a health exception, the law includes a long "findings" section with medical evidence presented during congressional hearings that, according to supporters of the law, indicates the procedures banned by the law are never medically necessary.

Federal judges in California, Nebraska and New York each issued temporary restraining orders to prevent enforcement of the ban. The decisions were upheld by three-judge panels of the 9th Circuit Court of Appeals in San Francisco, the 2nd Circuit Court of Appeals in New York City and the 8th Circuit Court of Appeals in St. Louis.

The Supreme Court in February 2006 agreed to hear oral arguments in Gonzales v. Carhart, which was the Department of Justice's appeal of the 8th Circuit Court panel's ruling. The court in June 2006 also agreed to hear arguments in the appeal of the 9th Circuit Court panel's ruling, known as Gonzales v. Planned Parenthood.

The act bans "an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child's body until either the entire baby's head is outside the body of the mother, or any part of the baby's trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered infant."

The American College of Obstetricians and Gynecologists has said that the procedures banned under the measure -- called "intact dilation and extraction and evacuation" and "dilation and extraction" -- are increasingly regarded as the safest abortion procedures during the second trimester of pregnancy.

The American Association of Pro Life Obstetricians and Gynecologists has said that other second-trimester abortion procedures not banned under the law -- including drug-induced labor and a dilation and evacuation procedure in which the physician "dismembers" the fetus inside the uterus -- are "medically appropriate" for all women.

U.S. Solicitor General Paul Clement, who argued the appeal for DOJ, in November 2006 said that although there is disagreement among medical experts about the necessity of the banned procedures, the Supreme Court must defer to the congressional findings section (California Healthline, 6/20/06).

The law says a physician who performs the banned procedures could face criminal prosecution, fines and up to two years in jail (New York Times, 4/19).

According to the Chicago Tribune, the law allows an exception for cases in which the life of the woman is in danger, but it does not permit doctors to use the procedure because they believe using another method would increase risks to the woman's health (Peres, Chicago Tribune, 4/19).

DOJ had no comment about how it plans to enforce the law, the Wall Street Journal reports (Bravin, Wall Street Journal, 4/19).

"The law need not give abortion doctors unfettered choice in the course of their medical practice," Kennedy wrote in the majority opinion, adding that the "medical uncertainty over whether the act's prohibition creates significant health risks provides a sufficient basis to conclude ... that the act does not impose an undue burden" (Sherman, AP/Forbes, 4/19). Kennedy also wrote that "the government has a legitimate and substantial interest in preserving and promoting fetal life," adding that the ban is in fact good for women, protecting them against terminating their pregnancies by a method they might not fully understand in advance and could regret later (New York Times, 4/19).

"While we find no reliable data to measure the phenomenon ... it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained," he wrote (Biskupic, USA Today, 4/19). Kennedy added that the government cannot forbid abortion outright but "may use its voice and its regulatory authority" to deter women from ending pregnancies, the Los Angeles Times reports.

The ban on the procedure will "encourage some women to carry the infant to full term, thus reducing the absolute number" of such abortions, he wrote (Savage, Los Angeles Times, 4/19).

The majority opinion and dissent are available online. Note: You must have Adobe Acrobat Reader to access the opinions.

Ginsburg in the dissenting opinion wrote that the majority was being paternalistic when expressing concerns about women's regret over an abortion, adding that the "solution the court approves" is "not to require doctors to inform women adequately of the different procedures they might choose and the risks each entails. Instead, the court shields women by denying them a choice in the matter" (USA Today, 4/19).

The law "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," Ginsberg wrote (Barnes, Washington Post, 4/19). She wrote that the "law saves not a single fetus from destruction, for it targets only a method of performing abortion" (Stohr, Bloomberg, 4/18).

The ruling marks the first time since the 1973 Roe v. Wade ruling, which effectively barred state abortion bans, that the court has "blesse[d]" a "prohibition" on certain abortion procedures "with no exception safeguarding a woman's health," Ginsberg wrote, adding that the majority "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by" ACOG (AP/Forbes, 4/19).

Bush in a statement said the court's ruling "affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America" (AP/Guardian, 4/19). Bush said the ruling is an "affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life," adding, "We will continue to work for the day when every child is welcomed in life and protected in law" (White House release, 4/18).

Reaction from presidential candidates to the ruling was "quick," along "party lines" and primarily targeted at their party's base, the New York Times reports (Toner, New York Times, 4/19).

Democratic candidates Sens. Barack Obama (Ill.), Hillary Rodham Clinton (N.Y.) and Chris Dodd (Conn.) said they are "disappointed" and "troubled" by the court's ruling.

Former Sen. John Edwards (D-N.C.) in a release said, "I could not disagree more strongly with" the decision, adding, "This hard right turn is a stark reminder of why Democrats cannot afford to lose the 2008 election" (Youngman, The Hill, 4/19).

Obama said, "I strongly disagree with today's Supreme Court ruling, which dramatically departs from previous precedents safeguarding the health of pregnant women" (New York Times, 4/19).

Clinton said, "It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations" of Roberts and Alito.

Sen. John McCain (R-Ariz.), who voted for the 2003 ban on the procedure, called the ruling "a victory for those who cherish the sanctity of life and integrity of the judiciary" (Murray/Cillizza, Washington Post, 4/19).

Former New York City Mayor Rudolph Giuliani (R), who supports abortion rights, said the court "reached the correct conclusion" (Finnegan, Los Angeles Times, 4/19).

Sen. Sam Brownback (R-Kan) said he "hope[s] that this decision signals the court's willingness to revisit and reverse" Roe, the AP/Guardian reports.

House Speaker Nancy Pelosi (D-Calif.) said that she is "disappointed" by the court's ruling, adding, "Criminalizing doctors for performing medically necessary procedures to save a woman's life or protect her health is wrong. The court's decision is a significant step backward."

House Minority Leader John Boehner (R-Ohio) applauded the court for its ruling, saying that his "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" (AP/Guardian, 4/19).

• ABC's "World News": The segment includes comments from Nancy Northup, president of the Center for Reproductive Rights; Jay Sekulow, chief counsel for the American Center for Law and Justice; and an abortion provider (Crawford Greenburg, "World News," ABC, 4/18). Video of the segment is available online.
  
  
• CBS' "Evening News": The segment includes comments from Sekulow, Sen. Orrin Hatch (R-Utah); and Gartner (Andrews, "Evening News," CBS, 4/18). Video of the segment is available online.
• KPBS' "KPBS News": The segment includes comments from Kathleen Sheehan, medical director of Planned Parenthood of San Diego and Riverside Counties (Goldberg, "KPBS News," KPBS, 4/18). A transcript and audio of the segment are available online.
• KPCC's "Air Talk": The segment includes a discussion with Joseph Scheidler, national director of the Pro-Life Action League, and Mary-Jan Waglé, president of Planned Parenthood Los Angeles (Mantle, "Air Talk," KPCC, 4/18). Audio of the segment is available online. Weekly archives of recent "Air Talk" broadcasts are available online.
• NBC's "Nightly News": The segment includes comments from Gartner; Sekulow; Eleanor Smeal, an abortion rights advocate; and Tom Goldstein, a Supreme Court attorney (Reid, "Nightly News," NBC, 4/18). Video of the segment is available online.
• NPR's "All Things Considered": The segment includes comments from Sekulow, Northup and Gartner (Totenberg, "All Things Considered," NPR, 4/18). Audio of the segment is available online.
• NPR's "Day to Day": The segment includes a discussion with Dahlia Lithwick, a legal analyst for "Day to Day" and Slate (Brand, "Day to Day," NPR, 4/18). Audio of the segment is available online.
• NPR's "Morning Edition": The segment includes comments from Gartner, Sekulow; Cecile Richards, president of PPFA; and Fred Frigoletto, a past president of ACOG (Totenberg, "Morning Edition," NPR, 4/19). Audio of the segment is available online.
• NPR's "Talk of the Nation": The segment includes a discussion with David Savage, a Supreme Court reporter for the Los Angeles Times (Conan, "Talk of the Nation," NPR, 4/18). Audio of the segment is available online.
• PBS' "NewsHour with Jim Lehrer": The segment includes a discussion with Marcia Coyle of the National Law Journal (Woodruff, "NewsHour with Jim Lehrer," PBS, 4/18). Audio and a transcript of the segment are available online.
• WAMU's "The Diane Rehm Show": The segment includes a discussion with Savage; Kate Michelman, president emerita of NARAL Pro-Choice America; and Cathy Ruse, senior fellow for legal studies at the Family Research Council (Page, "The Diane Rehm Show," WAMU, 4/18). Audio of the segment is available online.