Supreme Court Upholds Partial-Birth Abortion Ban

Robert Barnes
Washington Post Supreme Court Reporter
Thursday, April 19, 2007; 12:00 PM

Washington Post Supreme Court reporter Robert Barnes was online Thursday, April 19 at noon ET to discuss Wednesday's 5-4 ruling upholding a Congress-passed law banning partial-birth abortion, which could mark a more conservative trend on social issues with Justice Kennedy in the court's ideological center.

Court Backs Ban on Abortion Procedure (Post, April 18)

The transcript follows.


Robert Barnes: Good afternoon and thanks for joining the discussion on yesterday's Supreme Court decision. Forgive my typos and I'll try to get to as many questions as I can, and hope I can provide some answers.


Arlington, Va.: Is it correct to say that the only thing preventing the Supreme Court from overturning Roe vs. Wade is the replacement of just one of the four justices appointed by Democrats, or Justice Kennedy?

Robert Barnes: We don't really know the answer to that. Justice Kennedy certainly does not seem ready to take on the issue. Both Justices Clarence Thomas and Antonin Scalia, as you may know, restated their view that Roe has no basis in the Constitution, but they were not joined by Chief Justice Roberts and Justice Alito. Whether that is because they disagree or because the time isn't right is unknown.


Michigan: I suspect that many Republicans have supported a ban on abortions knowing that the courts would not allow these laws to become law even though a majority of Americans support the right of women to choose. Now that it appears that the Supreme Court will affirm these laws, are Republicans concerned about this becoming an important election issue, especially among middle-class women?

Robert Barnes: You can read a political fallout story that we ran this morning. As you might expect, the Democratic presidential candidates denounced the ruling, the Republicans generally supported it. But as the story pointed out, many Democrats felt they did well last fall because the discussion was not about divisive social issues. And while most people don't believe abortion should be outlawed, most believe there should be restrictions.

_______________________ Ruling Draws Lawmakers Toward Political Minefield (Post, April 19)


Atlanta: Because this could open all kinds of regulations, couldn't that potentially be a significant burden on physicians, as they would have to worry about being sued or arrested for procedures that they might see as most fit for their patients?

Robert Barnes: That is certainly a concern of those who challenged the federal ban. The court majority held that the law was specific enough about exactly what aspects of the procedure are forbidden for doctors to understand. There is no doubt that the intent of the law is to keep doctors from using a specific procedure, even if it is one they think would be best for their patient.


The Medical Perspective: Because I feel I have a pretty good handle on the politics of this ruling, I'd like to request The Post also do a chat hosted by a doctor who can explain when this procedure is done and under what circumstances, what procedure will replace it, and the health implications for women. I am seeing none of this information in newspapers or TV news.

Robert Barnes: I hope you'll take a look at David Brown's piece that ran with the package this morning. David is a doctor/journalist who I think is particularly good at explaining things to us nondoctors.

_______________________ Data Lacking on Abortion Method (Post, April 19)


Washington, Baby!: I'm more of a court-watcher than an abortion-law analyst, but I was struck by the lengths that Kennedy seemed to have departed from the O'Connor/Kennedy/Souter opinion and analysis in Casey. Ginsburg's dissenting opinion seemed not to focus on a narrow argument, but easily to point out the majority's abrogation of the "health of the mother" element of Casey, reaffirmed elsewhere. Do you perceive a major shift in Kennedy? And, if so, doesn't it go against the expectation that he was shifting toward the "left" of the Court? Thanks!

Robert Barnes: I don't believe it is a major shift in Kennedy's thinking at all. Kennedy thought that the "balancing" act put forward in Casey should have meant that a very similar "partial-birth" law from Nebraska should have been upheld in 2000.


College Park, Md.: Good morning. Ethically I don't want to act (or vote, for that matter) toward lifting the ban, because I disagree with partial-birth abortion -- but I do consider myself pro-choice. Am I just kidding myself? I think the real question is, is the Supreme Court's ban on partial-birth abortion really going to act as a catalyst for restricting all abortion, or will things remain as they have been for years?

Robert Barnes: We'd need a crystal ball to answer your question definitively, but I think it is safe to say that the court showed itself more willing to consider abortion restrictions from the states. Congress doesn't seem to be an option now that Democrats are in control. Justice Ginsburg certainly seemed to be hoping for reinforcements from a new president when she said the decision "should not have staying power."


Alpharetta, Ga.: Re: Arlington. There are four non-conservative justices, but only two of the nine justices were appointed by Democrats. Souter and Stevens were appointed by GOP-ers.

Robert Barnes: You are correct. I hadn't noticed that the question said four of the justices were appointed by Democrats.


Arlington, Va.: Does this ruling overturn Stenberg then, do you think?

Robert Barnes: The opinion doesn't state so, but everyone I've talked on both sides say that it does contradict the finding in Stenberg v. Carhart, which was struck down by the court because it didn't include an exception when a woman's health was at risk.


Centreville, Va.: Will this ruling make it so difficult to get a second trimester abortion that women will not be able to get an abortion in the second trimester without their life being in danger?

Robert Barnes: The majority opinion said not. It found that other abortion procedures were still available to women. The issue is that some physicians think they are riskier and can have more harmful effects than the procedure that was outlawed by Congress.


Wellesley, Mass.: It is fairly clear that some states will pass laws that ban abortions and that they will be upheld by the courts. Assuming this is true, will these bans be done on a state-by-state basis or at the federal level? Being from Massachusetts, is it reasonable to expect that abortions always will be available because there is no way the state will enact an abortion ban?

Robert Barnes: I think it unlikely that a Congress controlled by Democrats will pass additional abortion restrictions, even though the law at issue yesterday had bipartisan support. The most likely challenges will be from the states, and a number of them already are working their way through the legal system.


New York: The conventional wisdom appears to be that this is a chipping-away of abortion rights. But the majority opinion seemingly adopted the same middle-of-the-road "legitimate basis" test that only a plurality of the court applied in Casey. Moreover, whereas most pro-life supporters attack Roe and its progeny with the argument that abortion is a "states' rights" issue, this opinion further cements the notion that abortion is an issue properly in the domain of the federal government -- a potentially ironic setback for the pro-life movement. Thoughts?

Robert Barnes: I'm not sure that I agree that the opinion cements the notion that the issue is properly the domain of the federal government. But I think we will soon enough see the court take a challenge to a state restriction.


Silicon Valley, Calif.: How small is the likelihood that this will mobilize pro-choice voters in the next election? Do anti-abortion forces now have a way to argue "elect another Republican and we can finish the job of repealing Roe v. Wade"?

Robert Barnes: Politicians certainly make that argument, but I guess I've never been convinced that Supreme Court nominees are the top issue for voters when deciding who should lead the country. That is not to say that a president's court appointments aren't one of his most lasting -- if unpredictable -- achievements. This case does show the difference a change in court personnel makes, however. I think most everyone would agree the outcome was determined by Justice Alito's replacement of Sandra Day O'Connor.


Pittsburgh: Hypothetical question: In 2009 a pro-choice President and majority pro-choice Senate and House take office. Both houses of Congress pass national legislation overturning yesterday's Supreme Court decision, and the President signs it into law. Can the Supreme Court still overturn it?

Robert Barnes: If I follow your example correctly, I would think so. If the majority decided Congress was within its rights to prohibit a procedure, it could also remove the restriction.


Washington: Given that Chief Justice Roberts advocates rulings that are narrow in scope, is it fair to say that yesterday's ruling simply overrules the original Stenberg v. Carhart from 2000, or do you think this ruling is broader in scope? Is it a fair concern that yesterday's decision erodes other due process areas, such as gay rights and Lawrence v. Texas?

Robert Barnes: Well, certainly the dissenters thought it broader in scope. Ginsburg wrote that the majority's disdain for Roe was "not concealed." There was a tone to the opinion that signaled a discomfort with abortion and an embrace of the government's right to protect what it referred to often as the "unborn."

(Ginsburg also took Kennedy to task for repeatedly referring to "abortion doctors.")


Silicon Valley, Calif.: Removing the exclusion for cases where the life of the mother is at risk seems insane. Are they really saying that the doctor has to put the life of the fetus above saving the life of the mother? Where is the outrage on the part of women's groups and women in general?

Robert Barnes: The law does contain an exception to save the life of the woman. It doesn't contain an exception for concerns about her "health," saying the procedure is never medically necessary to preserve her health.


Manassas, Va.: Justice Ginsburg, I believe, wrote in her opinion, or in a footnote, that a number of major medical schools had been teaching the intact Dilation and Extraction method of abortion. I assume now that those schools no longer will be allowed to teach that method?

Robert Barnes: I haven't really thought about that, but I doubt the decision would cover the teaching of the procedure. The court left open, for example, a doctor or woman challenging the ban in a specific case. (Ginsburg and abortion rights groups thought such a scenario would be unlikely considering the timeliness of a woman making such a decision.)


Bowie, Md.: I think Pittsburgh and some others are misinterpreting the decision -- the Supreme Court did not ban partial-birth abortions, they ruled that a ban on partial-birth abortions was not unconstitutional. If there is a pro-choice Congress, they would not vote to overturn the Court's decision, they would vote to remove the ban. Obviously, this is constitutional.

Robert Barnes: We're running out of time, so I'm going to post some of your questions/comments without my own rambling so you can get an idea what others are saying.


Greenbelt, Md.: I think this decision goes to show that the American people would be better served by a Supreme Court that had more diversity in its members. This citizens of this country are at least 50 percent female. I hope that in the future our government and courts will have a similar distribution of men and women.

Robert Barnes: Thanks for writing


Glenside, Pa.: You mentioned people restrictions, that is true, but it's also complicated. When a lot of these restrictions reasonable on the surface, they're more complicated in the real world, and they can manifest itself. In both California and Oregon, parental notification measures failed. In both states, polls moved when ads come out highlighting the abuse issue, medical delays, etc. And in California, the actual juvenile courts publicized that they found it unrealistic to deal with such things through judicial bypass. The California exit poll (California is decisively pro-choice, but...) showed 59 percent of moderates and 63 percent of independents opposed the measure.

Robert Barnes: Thanks for your comments


Washington: Thank you, you have hit on something that I believe a lot of your far-left crowd don't seem to get. I come from a long line of very religious life-long Democrats. The have voted Republican based on issues like these.

Robert Barnes: I've never been lucky enough to have a crowd, but thanks for your comments.


Oxford, Ohio: For a society that worries about the fate of children, baby seals and whales, I find it ludicrous that people are apoplectic over the court's finding that a legislature has deemed a procedure is gruesome and shocking to public sensibilities and has the power to ban this practice. Abortions are still available -- only this procedure cannot be used.

Robert Barnes: Thanks.


San Francisco: We heard so much about Chief Justice Roberts' goal of unanimity in order to improve the Court's credibility and societal impact after he was confirmed. How's he doing in that regard? The Roberts Court seems quite split, usually.

Robert Barnes: There have been a number of 5-4 decisions this year -- Kennedy, by the way, always in the majority -- but that seems unsurprising to me. These issues divide society, why not the court?


Robert Barnes: We are out of time, I'm afraid. Thanks very much for your smart questions and comments and for taking time to be part of the discussion.


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