A Shift on Abortions

The Supreme Court upholds a ban on partial-birth procedures -- and imperils the right of women to choose.

YESTERDAY'S Supreme Court ruling upholding the ban on the procedure known as partial-birth abortion is not apt to prevent any abortions: Most likely, the tiny percentage of women who would have undergone this admittedly gruesome procedure will instead opt to terminate their pregnancies by another procedure, equally, if not more, gruesome. But the 5 to 4 ruling, whose result is most easily explained by a change in the court's membership since it overturned a similar statute seven years ago, will certainly prevent some women from choosing the abortion procedure that their doctors believe would be safest in their individual cases.

Even more chilling, though, are the implications of the court's approach. Supporters of abortion rights have reason to be alarmed by the majority's decision, for the first time since Roe v. Wade, to uphold an abortion restriction that makes no exception for a woman's health; its elevation of the importance of the state interest in protecting the fetus throughout pregnancy; and its cavalier willingness to uphold the law absent proof that it "would be unconstitutional in a large fraction of relevant cases." That analysis, as Justice Ruth Bader Ginsburg emphasized in the dissent she read from the bench, represents a dramatic departure: It "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."

The most immediately disturbing aspect of the ruling is the majority's breezy dismissal of medical evidence that the partial-birth procedure is sometimes in the best interest of a pregnant woman's health. After the court overturned Nebraska's partial-birth abortion ban in 2000 in part because it lacked a health exception, Congress moved to get around that inconvenience by issuing a legislative finding that the procedure is never medically necessary. Three separate district courts, upheld by three appeals courts, found that this was unreasonable and unsupported by medical evidence. The majority ruling, by Justice Anthony M. Kennedy, overcomes this obstacle by simply asserting that the law can withstand legal challenge when "medical uncertainty persists."

Tell that to a woman whose doctor believes that performing the partial-birth procedure would provide a better chance of allowing her to bear children in the future. Nearly as galling is the majority's paternalistic pretense that the law can be justified by Congress's interest "in protecting the integrity and ethics of the medical profession" and in protecting pregnant women from making a choice they may come to regret.

With the departure of Justice Sandra Day O'Connor and the arrival of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., this is clearly a different court, one far more willing to uphold abortion restrictions and to give great weight to "moral concerns," if still short of the necessary votes to overturn Roe. The willingness of the two new justices to stray so far from the court's previous rulings is disappointing and ominous.