High court upholds ban on abortion procedure

WASHINGTON -- The Supreme Court voted yesterday to uphold a national ban on the procedure opponents call "partial-birth abortion," marking the first time the court has allowed a ban on any type of abortion without a broad exception to protect a woman's health.

The 5- to- 4 decision upholding the Partial-Birth Abortion Ban Act, which President Bush signed in 2003, represented a major victory for social conservatives. The federal law bans an abortion technique that involves partially extracting the fetus intact before destroying it, with a narrow exception allowing the procedure only to save a woman's life.

The ruling underscored the court's rightward shift as a result of Bush's two appointments to the bench. Legal scholars said the decision probably would have gone the other way had Justice Sandra Day O'Connor, who was a decisive vote in favor of abortion rights in several major cases, not retired and been replaced by Justice Samuel Alito last year.

Writing for the majority, Justice Anthony Kennedy said that the Constitution does not prevent the government from banning the procedure to advance its "legitimate interest . . . in protecting the life of the fetus that may become a child."

His opinion also quoted Congress's description of the technique as a "gruesome and inhumane procedure that is never medically necessary."

Kennedy was joined by Justices Antonin Scalia, Clarence Thomas, and the two recent Bush appointees, Alito and Chief Justice John Roberts. During their confirmation hearings, Alito and Roberts had promised to give strong deference to past court rulings, while declining to say how they would rule on abortion cases. Abortion rights activists, who had warned that the two would undermine abortion rights, said yesterday that their fears had been confirmed.

In a strongly worded dissent, Justice Ruth Bader Ginsburg called the decision "alarming" and declared that it was an "an effort to chip away" at the court's prior rulings upholding a woman's right to choose an abortion. Ginsburg, the court's sole female justice, was joined by Justices Stephen Breyer, David Souter, and John Paul Stevens.

The court's change of course on the emotionally charged field of abortion rights had an immediate political impact, as partisans on both sides characterized the decision as moving the country closer to a future in which abortion might again be criminalized by state legislatures or Congress.

In a statement released by the White House, Bush applauded the court's move as a major step toward "building a culture of life in America."

"Today's 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," Bush said. ". . . 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. We will continue to work for the day when every child is welcomed in life and protected in law."

James Dobson, chairman of the evangelical political activist group Focus on the Family, said in a statement, "We thank God that the Supreme Court has affirmed the value of human life by banning the Nazi-esque barbarism that is partial-birth abortion."

But Kim Gandy, president of the National Organization for Women, said in a statement, "This is a clarion call for feminists, progressives, and everyone who cares about justice, equality, and democracy. We must link arms and say 'No more.' We must elect a Congress that will repeal this ban and a president who will sign the repeal."

The 5-to-4 decision also rippled through the 2008 presidential campaign. Both Republicans and Democrats said the ruling showed that the next president's nominees to the Supreme Court could prove decisive in either rolling back or solidifying abortion rights for the next generation. Ginsburg is 74; Stevens will turn 87 tomorrow.

The question of how far the government may go in restricting abortion access has been a legal battleground since 1973, when the Supreme Court first declared that the Constitution contains an unwritten right for women to choose to have an abortion.

The Roe v. Wade decision greatly limited the power of state legislatures and Congress to restrict abortion access. The case also sparked a backlash among social conservatives, who launched a movement to remake the Supreme Court in the hope that it would overturn Roe.

As the years passed, the Supreme Court -- which included Kennedy, a nominee of President Ronald Reagan who was confirmed in 1988 -- has continued to say that the government cannot pass an outright ban on abortion. But the court has increasingly allowed restrictions that can make access to an abortion more difficult.

In recent years, legal questions have centered on whether the government can outlaw certain techniques for performing an abortion later in pregnancy, often after medical complications have arisen. Because the fetus is closer to birth, such abortions are more complicated to perform, and more controversial.

In 1997, Nebraska enacted a ban on "partial-birth" abortion. But in 2000, the Supreme Court voted 5-to-4 to strike it down. The majority said the law was unconstitutional because it made no exception for a woman's health, and because it could have been interpreted as banning other, less controversial techniques.

O'Connor wrote the majority opinion in the 2000 decision, while Kennedy dissented.

The same dispute arose again in 2003, when Congress passed the federal Partial-Birth Abortion Ban Act, and Bush signed it. A group of abortion providers immediately challenged the law, and three district courts and three appeals courts all held that the law was unconstitutional.

In overturning those lower court decisions, yesterday's Supreme Court ruling clears the way for the Justice Department to prosecute any doctor who performs the procedure. The crime carries a penalty of a fine and up to two years in prison.

Kennedy suggested that he was not departing from precedent, pointing to the fact that the federal law is more limited than the Nebraska version and thus should be upheld. But Ginsburg accused the majority of failing to take "seriously" the court's own precedents.

Ginsburg also made a pointed suggestion for why "a decision so at odds with our jurisprudence" had prevailed. The court, she said, was now "differently composed than it was when we last considered a restrictive abortion regulation."