|WASHINGTON — The U.S. Supreme Court upheld a federal ban on a gruesome procedure known as partial-birth abortion April 18, delivering an important victory for legislative efforts to protect unborn children.
The high court's 5-4 decision reversed rulings by two federal appeals courts and affirmed the Partial-birth Abortion Ban Act as the law of the land, marking the first judicially approved restriction on a specific procedure since the justices legalized abortion in 1973. The 2003 law prohibits an abortion technique that involves the killing of a nearly totally delivered baby normally in at least the fifth month of pregnancy.
Chief Justice John Roberts joined Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito in the majority. Kennedy, who affirmed the court's 1973 Roe v. Wade decision in a crucial 1992 ruling, wrote in the majority opinion that the ban does not infringe on the right to abortion declared previously by the high court, meaning Roe remains in effect. He said the ban is not vague and does not impose "an undue burden on a woman's right to abortion" based on it being either overly broad or lacking an exception for the mother's health.
Associate Justice Ruth Bader Ginsburg sharply disagreed in her dissent, calling the decision a retreat from previous rulings. She said the opinion was "alarming," and she described as "irrational" the idea the law advanced a "legitimate governmental interest." Associate Justices John Paul Stevens, David Souter and Stephen Breyer joined Ginsburg in the minority.
President George W. Bush, who nominated Roberts and Alito to the high court, said he was pleased with the ruling, calling it 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."
The stark contrasts on the court were mirrored in the reactions of pro-life and pro-choice advocates.
"This is a great day for justice. This is a great day for the unborn. And this is a great day for America," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.
The Susan B. Anthony List, which seeks to help elect pro-life women to Congress, called the ruling a "watershed moment for the pro-life movement." The organization's statement said the decision "will likely inspire increased support for more common-sense restrictions on abortion across the country."
U.S. Rep. Chris Smith, R.-N.J., a congressional pro-life leader, said the ruling was overdue.
"Finally, the high court has found its voice and used its authority to defend helpless children and their vulnerable mothers from the violence of abortion,” Smith said. “Scrutiny must be brought to bear on the methods of abortion. The discussion of partial-birth abortion begins that process."
Critics target Bush
Meanwhile, abortion-rights organizations criticized the decision.
Americans "should be absolutely outraged by this unprecedented and dangerous intrusion into the private relationship between a woman and her doctor," said Joan Malin, president of Planned Parenthood of New York City. "Planned Parenthood will comply with the law. But our doors are not closed."
The ERLC's Land and abortion-rights supporters agreed the decision demonstrated one thing—elections have consequences. Bush's re-election in 2004 enabled him to nominate Roberts to replace the late Chief Justice William Rehnquist and Alito to take the seat of Associate Justice Sandra Day O'Connor upon her retirement, both in 2005. Alito's presence on the court made the difference in the ruling, since O'Connor had voted to strike down a similar state law in a 5-4 decision in 2000.
"Today's decision shows Bush's appointees have moved the court in a direction that could further undermine Roe v. Wade and protections for women's health," said Nancy Keenan, president of NARAL Pro-choice America. "We need to elect more pro-choice members of Congress and a president who will stand up for—not attack—our fundamental values of freedom and privacy."
Land disagreed with Keenan.
"Thank God for President Bush, and thank God for Chief Justice John Roberts and Associate Justice Samuel Alito,” the ethics expert said.
"If Al Gore or John Kerry, rather than President George W. Bush, had made the nominations to replace the late Chief Justice William Rehnquist and retired Associate Justice Sandra Day O'Connor, then this monstrous partial-birth abortion procedure would have likely been upheld by the highest court as constitutional in the land in a 6-3 vote, rather than being struck down 5-4," he said. "It would have been a decade or more before there would have been an opportunity to change the balance of the court in favor of this monumental step for justice for our partially born and unborn citizens."
The Partial-birth Abortion Ban Act bars a procedure in which, as typically used, an intact baby is delivered feet first until only the head is left in the birth canal. The doctor pierces the base of the infant's skull with surgical scissors before inserting a catheter into the opening and suctioning out the brain, killing the baby. The technique provides for easier removal of the baby's head. The law allows an exception if the mother's life is threatened.
Congress approved the ban in 2003 with a 64-34 vote in the Senate and a 281-142 vote in the House of Representatives. Congress had twice adopted partial-birth abortion bans in the 1990s only to have then-President Bill Clinton veto them. In both 1996 and 1998, the House achieved the two-thirds majorities necessary to override vetoes, but the Senate fell short.
After Bush signed the bill into law in November 2003, abortion rights organizations quickly challenged it in three courts and blocked its enforcement. Federal judges in New York City, San Francisco and Lincoln, Neb., struck down the law. Three-judge panels in the Ninth Circuit based in San Francisco, Eighth Circuit based in St. Louis, and Second Circuit based in New York upheld the lower court decisions.