Court OKs Ban on Partial-Birth Abortion

Posted: Apr 18, 2007 12:06 PM


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 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 have said the procedure sometimes is the safestfor 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 usedprocedures that remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

Alito, Roberts, Scalia, Thomas, Kennedy made up the majority.

Update: Oddly enough, there seem to be no statements on the NOW or NARAL sites yet.

The FRC blog has a pdf of the opinion.

SCOTUSblog calls the decision "sweeping" and "barely qualified" in its affirmation of the partial-birth abortion ban of 2003, and reports that Ginsburg wrote the dissent, calling it an "alarming decision."

In the course of her dissenting opinion, Ginsburg accused the majority of offering "flimsy and transparent justifications" for upholding the ban. She also denounced the Kennedy opinion for its use of "abortion doctor" to describe specialists who perform gynecological services, "unborn child" and "baby" to describe a fetus, and"preferences" based on "mere convenience" to describe the medical judgments of trained doctors. She also commented: "Ultimately, the Court admits that 'moral concerns' are at work, concerns that could yield prohibitions on any abortion."

Yes, a messaging win like "baby" as opposed to "fetus" in the opinion is certain to rankle the pro-abortion lobby.

Update: Why did Kennedy write it?

If the Chief Justice is in the majority, as Roberts was here, it falls to him to decide who’s responsible for writing the majority opinion.Kennedy probably got the call for two reasons: one, having an author of the Casey opinion put his name on today’s decision lends it a bit of extra authority, and two, since Kennedy is a fence sitter on this issue,Roberts wants to do what little he can to “lock him in” to anti-abortion precedent by making him as personally invested in it as possible.

Update: McCain and Romney are first out with pro-decision statements.

Update: Here's Rudy's statement, which is somewhat less impassioned:

"The Supreme Court reached the correct conclusion in upholding the congressional ban on partial birth abortion. I agree with it."

Update: Feminist commentary:

"We're f***ed."