By Robert Barnes
Washington Post Staff Writer
Thursday, April 19, 2007
The Supreme Court broke new ground yesterday in upholding federal restrictions on abortion, with President Bush's two appointees joining a court majority that said Congress was exercising its license to "promote respect for life, including the life of the unborn."
The court's 5 to 4 decision upholding the Partial Birth Abortion Ban Act passed by Congress in 2003 marked the first time justices have agreed that a specific abortion procedure could be banned. It was also the first time since the landmark Roe v. Wade decision of January 1973 that justices approved an abortion restriction that did not contain an exception for the health of the woman. It does, however, provide an exception to save the woman's life.
"The government may use its voice and its regulatory authority to show its profound respect for the life within the woman," Justice Anthony M. Kennedy wrote. He said the ban on the controversial method for ending a midterm pregnancy is valid because other abortion procedures are still available.
Kennedy was joined by Bush's appointees -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- and Justices Antonin Scalia and Clarence Thomas.
Kennedy announced the decision before a hushed chamber, and while his opinion did not overturn Roe or the court's subsequent decisions, yesterday's ruling marked an unmistakable shift.
Justice Ruth Bader Ginsburg acknowledged as much moments later, when she 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 in a limited number of midterm abortions, but the court's decision will probably have an immediate effect on U.S. politics and lawmaking.
The 2008 presidential candidates split along party lines in their reaction -- Democrats had angry words for the court and Republicans were generally supportive. Activists on both sides of the issue predicted that the decision will encourage antiabortion state legislatures to pass laws not only adding new 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 is especially significant because the court had rejected in 2000 a Nebraska law aimed at banning what opponents call "partial birth" abortion, 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 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.