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High Court Upholds Curb on Abortion
With Alito taking her place and approving the federal ban, the majority has shifted. Antiabortion activists now see the makings of a court they have longed for.
"It is just a matter of time before the infamous Roe v. 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 aggressive campaign on the part of antiabortion activists to outlaw the 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 procedures are not affected by the federal law.
Later in pregnancy, some type of surgery is required. Dilation and evacuation is the method 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 intact dilation and evacuation, which they say carries a lower risk of bleeding, infections and permanent injury.
It involves partly delivering the fetus and then crushing the skull to make removal easier. It is this procedure that Congress made a crime. Opponents say it is a form of infanticide, because the fetus could be viable at the time. It made doctors who perform such surgery subject to up to two years in prison.
The law has never taken effect. Lower courts, after conducting lengthy trials and considering previous Supreme Court decisions, declared it unconstitutional.
To write the opinion in his new court's most important abortion decision to date, Roberts chose Kennedy, who has been in the majority in each of the court's 5 to 4 decisions this term.
Kennedy was in the majority that reaffirmed the basic rights in Roe in 1992's Planned Parenthood of Southeast Pa. v. Casey. He dissented in 2000's Stenberg v. Car hart, which struck down Nebraska's law.
While opponents of the federal ban said it was similar to Nebraska's law, Kennedy went to lengths to show it "departs in material ways." He said that it is specific enough to instruct doctors on exactly which procedures are allowed, and that it applies only when a physician "deliberately and intentionally" performs the banned procedure.
The opinion left open the possibility that a doctor or woman could bring a narrowly tailored challenge to the law, a prospect that abortion rights advocates discounted.
Kennedy wrote that the procedure is "laden with the power to devalue human life.''
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 is "differently composed" than the last time it considered abortion restrictions. She added: "A decision so at odds with our jurisprudence should not have staying power."
The combined cases are Gonzales v. Carhart et al. and Gonzales v. Planned Parenthood Federation of America.