Court affirms ban on abortion procedure

WASHINGTON – The Supreme Court on Wednesday broke new ground in upholding federal restrictions on abortion, with President Bush’s two appointees joining a narrow court majority that said Congress was exercising its license to “promote respect for life, including the life of the unborn.”

The court’s 5-4 decision upholding the Partial Birth Abortion Ban Act passed by Congress in 2003 marked the first time justices have agreed a specific abortion procedure could be banned, and the first time since the landmark Roe v. Wade decision that justices approved an abortion restriction that did not contain an exception for the health of the woman.

“The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,” wrote Justice Anthony Kennedy. He said the ban on the controversial method of ending a midterm pregnancy was valid because other abortion procedures were still available to a woman. It provides an exception to save the woman’s life.

Kennedy was joined by Bush’s appointees – Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. – as well as Justices Antonin Scalia and Clarence Thomas.

Kennedy announced the decision before a rapt chamber, and while his opinion didn’t overturn Roe or the court’s subsequent decisions, Wednesday’s ruling marked an unmistakable shift.

Justice Ruth Bader Ginsburg acknowledged as much moments later, when she slowly and solemnly read a statement from the bench explaining her dissent.

The majority opinion, she told a stone-silent courtroom, “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.”

The federal law bans a procedure used only in a limited number of midterm abortions, but the court’s decision will likely have an immediate effect on American politics and lawmaking.

The 2008 presidential candidates split along party lines in their reaction – Democrats with angry words for the court and Republicans generally supportive – and activists on both sides of the issue predicted the decision will encourage anti-abortion state legislatures to pass laws not only adding new abortion restrictions but looking to challenge Roe itself.

Bush said in a statement that the decision “affirms that the Constitution does not stand in the way of the people’s representatives enacting laws reflecting the compassion and humanity of America.”

He added: “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.”

The decision was especially significant because the court had rejected in 2000 a Nebraska law aimed at outlawing what opponents called partial-birth abortions because it lacked an exception for preserving the health of the woman. That five-member majority included all of yesterday’s dissenters, plus then-Justice Sandra Day O’Connor.

With Alito taking her place and approving the federal ban, the majority shifted, and anti-abortion activists saw the makings of a court they have longed for.

“It is just a matter of time before the infamous Roe vs. Wade … will also be struck down by the court,” predicted Roberta Combs, president of the Christian Coalition of America.

“The impact of Sandra Day O’Connor’s retirement is painfully clear,” said Nancy Northrup, president of the Center for Reproductive Rights, adding “It took just a year for this new court to overturn three decades of established constitutional law.”

The ruling capped an agressive campaign on the part of anti-abortion activists to outlaw the abortion procedure known as an “intact dilation and evacuation.”

As many as 90 percent of abortions are performed within the first three months of pregnancy, and in most cases a physician vacuums out the embryonic tissue. Those are not affected by the federal law.

Later in pregnancy, some type of surgery is required. Dilation and evacuation is the procedure most often used, in which the woman is placed under anesthesia, her cervix is dilated and the fetus is removed in pieces.

But some physicians say that in certain circumstances, it is better for a woman to undergo a procedure called “intact dilation and evacuation,” which they say carries a lower risk of bleeding, infections and permanent injury.

It involves partially delivering the fetus and then crushing the skull to make removal easier. It is this procedure that Congress made a crime. Opponents of the procedure say it is a form of infanticide because the fetus could be alive at the time. The ruling makes doctors who perform such surgery subject to up to two years imprisonment.

The law has never taken effect. Lower courts, after conducting lengthy trials and taking into account previous Supreme Court decisions, declared it unconstitutional.

In her stinging dissent, Ginsburg said the court’s “hostility to the right Roe and Casey secured is not concealed.”

She wrote that the answer to Kennedy’s concern that women would regret uninformed decisions to undergo the procedure is to require physicians to give them more information.

“Instead, the court deprives women of the right to make an autonomous choice. … This way of thinking reflects ancient notions about women’s place in the family and under the Constitution – ideas that have long since been discredited,” Ginsburg wrote.

Ginsburg, joined by Justices Stephen G. Breyer, David H. Souter and John Paul Stevens, noted that the court was “differently composed” than the last time the court considered abortion restrictions, and added: “A decision so at odds with our jurisprudence should not have staying power.”