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The New York Times
April 19, 2007
In Reversal, Justices Back Ban on Method of Abortion
By LINDA GREENHOUSE
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.
The New York Times
April 19, 2007
Denying the Right to Choose
Among the major flaws in yesterday’s Supreme Court decision giving the federal government power to limit a woman’s right to make decisions about her health was its fundamental dishonesty.
Under the modest-sounding guise of following existing precedent, the majority opinion — written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Samuel Alito — gutted a host of thoughtful lower federal court rulings, not to mention past Supreme Court rulings.
It severely eroded the constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth. The justices went so far as to eviscerate the crucial requirement, which dates to the 1973 ruling in Roe v. Wade, that all abortion regulations must have an exception to protect a woman’s health.
As far as we know, Mr. Kennedy and his four colleagues responsible for this atrocious result are not doctors. Yet these five male justices felt free to override the weight of medical evidence presented during the several trials that preceded the Supreme Court showdown. Instead, they ratified the politically based and dangerously dubious Congressional claim that criminalizing the intact dilation and extraction method of abortion in the second trimester of pregnancy — the so-called partial-birth method — would never pose a significant health risk to a woman. In fact, the American College of Obstetricians and Gynecologists has found the procedure to be medically necessary in certain cases.
Justice Kennedy actually reasoned that banning the procedure was good for women in that it would protect them from a procedure they might not fully understand in advance and would probably come to regret. This way of thinking, that women are flighty creatures who must be protected by men, reflects notions of a woman’s place in the family and under the Constitution that have long been discredited, said a powerful dissenting opinion by Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens, David Souter and Stephen Breyer.
Far from being compelled by the court’s precedents, Justice Ginsburg aptly objected, the new ruling is so at odds with its jurisprudence — including a concurring opinion by Justice Sandra Day O’Connor (who has now been succeeded by Justice Alito) when a remarkably similar state abortion ban was struck down just seven years ago — that it should not have staying power.
For anti-abortion activists, this case has never been about just one controversial procedure. They have correctly seen it as a wedge that could ultimately be used to undermine and perhaps eliminate abortion rights eventually. The court has handed the Bush administration and other opponents of women’s reproductive rights the big political victory they were hoping to get from the conservative judges Mr. Bush has added to the bench. It comes at a real cost to the court’s credibility, its integrity and the rule of law.