BREAKING: Supreme Court Upholds Ban On Partial Birth Abortion

Ken AshfordBreaking News, Supreme Court, Women's IssuesLeave a Comment

MSNBC story here.

Opinion here.

No time to read the opinion and give my expert legal analysis, but it’s clear that Stenberg v. Carhart (2000) is effectively overturned (although the majority opinion denies that they are doing so).  The different between that case and this one?  Alito is on the Court; O’Connor is not.

UPDATE:  Lyle Denniston of SCOTUSBLOG does the work, so I don’t have to:

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping — and only barely qualified — victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions."

Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure — prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.

The Court said that it was upholding the law as written — that is, its facial language. It said that the lawsuits challenging the law faciallly should not have been allowed in court "in the first instance." The proper way to make a challenge, if an abortion ban is claimed to harm a woman’s right to abortion, is through as as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."

Kennedy said the Court was assuming that the federal ban would be unconstitutional "if it subjected women to significant health risks." He added, however, that "safe medical options are available." His opinion noted that the Bush Administration "has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained."

The majority said it had not "uncritically" deferred to Congress’ factual findings in passing the Partial-Birth Abortion Ban Act of 2003. "We do not in the circumstances here place dispositive weight on Congress’ findings," Kennedy wrote, adding that the Court was not accepting the Bush Administration argument that the law could be upheld on the basis of those findings alone. He added "The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake."

Justice Ruth Bader Ginsburg, speaking out in the courtroom for the dissenters, called the ruling "an alarming decision" that refuses "to take seriously" the Court’s 1992 decisions reaffirming most of Roe v. Wade and its 2000 decision in Stenberg v. Carhart striking down a state partial-birth abortion law.

Ginsburg, in a lengthy statement, said "the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health." She said the federal ban "and the Court’s defense of it 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. A decision of the character the Court makes today should not have staying power."

That final comment, concluding remarks delivered matter-of-factly, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is "differently imposed that it was when we last considered a restrictive abortion regulation" — in Stenberg in 2000.

Joining Kennedy in the majority were the Chief Justice, and Justices Alito, Antonin Scalia and Clarence Thomas. With Ginsburg in dissent were Justices Stephen G. Breyer, David H. Souter and John Paul Stevens. Thus, Alito’s replacement of retired Justice Sandra Day O’Connor made the most difference in turning the Court around from its 2000 decision in the Stenberg case. O’Connor was in the majority in that decision, as were the four dissenters in this new decision.

Something strikes me as a bit odd about the procedural aspects that result from this ruling.  It looks like the law banning partial birth abortions can still be challenged in as-applied, "discrete" instances.  The problem, of course, is that if a partial birth abortion procedure is medically required, the woman patient isn’t going to have the time to dick around for months in courtrooms.  Maybe I’m missing something.

Personally, I can’t get too worked up about this.  The partial birth abortion procedure has gotten a lot of press, and anti-choice advocates get really really worked up about it.  But the fact is, it is a very, very little-used procedure, used only in the rarest of abortion cases, and only where it is medically necessary.  I’m not sure this opinion represents a huge victory for the anti-choice crowd, nor does it really come close to signalling the death knell for Roe v. Wade.  Perhaps the negative impact of this decision is a change in the way courts look at abortion challenges, rather than the actual result in this particular corner of the battle.  But I’d have to get in to the opinion to make that assessment for sure.

UPON SOME REVIEW:  I’m loving Ginsburg’s dissent.  Her points, distilled by me:

  • The majority is saying that the government has a legitimate and substantial interest in preserving fetal life.  But that’s a bullshit rationale, because the law in question doesn’t save a single fetal life.  It only bans one method of abortion, forcing (some) women to choose an alternative (and perhaps more dangerous) procedure.
  • The majority admits — they admit — that their basis for upholding the ban is based on "moral concerns".  But when it comes to "moral concerns" over "fundamental rights", it is the job of the courts to protect rights.
  • The majority whips out that old canard that women who have abortions come to regret this decision and suffer from "severe depression".  Do they have any evidence for this?  How frequently does this happen?  While the decision to have an abortion is unquestionably difficult for most women, what’s that basis for the conclusion that most, or even many, women "come to regret the decision"?  There is no conclusive evidence — yet the majority just states it as if it was fact.
  • The majority’s decision is paternalistic, harkening back to the ancient days where women knew their place and men made all the important decisions.  Under the court’s decision today, women will become less informed about decisions that affect their bodies and their lives.
  • The majority is clearly biased,  They use the word "baby" and "unborn child" to describe what is more accurately a "fetus".  Obststricians are referred to as "abortion doctors" (a perjorative term).  Second term abortions are referred to as "late term" abortions.
  • The decision allows for an "as applied" challenge to the law.  But in the real world, when a doctor is faced with having to make an immediate decision — i.e., to perform a partial birth abortion when the mother is in medical need — what’s he going to do?  Save the woman and risk criminal prosecution?  The court’s decision really puts the screws to him and mothers.

Here’s her strongest quote:

Today¬í’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.