Seven years after overturning Nebraska’s partial-birth abortion ban, the Supreme Court of the United States, in a 5-4 decision, has upheld a federal ban.
In 2003, Congress passed the Partial-Birth Abortion Ban Act and President George W. Bush signed it into law. However, the restriction never took effect, because state courts in California, Nebraska and New York prevented its implementation. In the meantime, the composition of the Supreme Court changed. In 2006, Associate Justice Sandra Day O’Connor and Chief Justice William Rehnquist retired. Since joining the court in 1982, O’Connor had supported Roe v. Wade and voted against any restriction on abortion. Rehnquist opposed Roe and consistently found pro-life legislation constitutional. Their replacements were Chief Justice John Roberts and Associate Justice Samuel Alito, both thought to be (at least) inclined toward pro-life jurisprudence.
In his opinion, Kennedy (who was joined by Roberts and Alito), wrote, “The act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process … Congress determined that the abortion methods it proscribed had a ‘disturbing similarity to the killing of a newborn infant.’” The majority ruled that the federal government could ban the partial-birth abortion procedure. Two aspects of the Kennedy opinion are noteworthy. The first is that Kennedy said the PBA ban was “facially” constitutional and that the lawsuits challenging the law should never have been allowed in court anyway. He said that “if an abortion ban is claimed to harm a woman’s right to abortion,” it could be litigated through an as-applied claim on an individual woman-by-woman basis. Kennedy also noted the brutality of the partial-birth abortion procedure, quoting extensively from medical staff testimony. Quoting Dr. Martin Haskell, Kennedy described the method of “intact dilation and extraction” (the medical name for PBAs): “The surgeon forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents.” He also quotes a nurse who witnessed one such abortion: “The baby’s little fingers were clasping and unclasping and his little feet were kicking. Then the doctor stuck the scissors in the back of his head and the baby’s arms jerked out, like a startled reaction, like a flinch, like a baby does when he thinks he’s going to fall.” G. Tracy Mehan III, an adjunct professor at George Mason University School of Law, wrote in the American Spectator Online that Kennedy “deserves credit for an excruciating, factual, and grueling statement of the underlying facts of the case; specifically, the horror which is abortion and partial-birth abortion.” In doing so, Mehan says, Kennedy is “scrupulous in setting out the complete record documenting the existential realities of partial-birth abortion.” In her dissent, Justice Ruth Bader Ginsberg rebuked the majority, saying that the decision was “alarming,” because it “refuses to take seriously” Supreme Court precedent on abortion restrictions. The New York Sun’s Joseph Goldstein noted it was the first time the Supreme Court “upheld a ban on a specific abortion procedure.” Michael J. New, an assistant professor at the University of Alabama, wrote on National Review Online that until the current decision (Gonzalez v. Carhart) the “judiciary has been a consistent thorn in the side of the pro-life movement.” That may change. As the New York Sun reported, the decision “will require groups such as Planned Parenthood, which brought the case, to rethink its litigation strategy.” More important, the tilt of the Supreme Court to the pro-life side on this one issue is a vindication of a quarter-century’s worth of work by the grassroots pro-life movement. New outlined how pro-life activists have fought for incremental restrictions and suggested that the combination of laws restricting abortion and the public debate over them have played a role in the decreasing number of surgical abortions in the U.S. Furthermore, New said that in recognizing an all-encompassing ban on abortion was not a viable pro-life strategy, many pro-lifers looked for ways to curtail the abortion licence and focused on changing the Supreme Court. After 25 years of such political activism, the first major victory has occurred. Some pro-lifers hope this is the just the beginning, with the Gonzalez decision getting the ball rolling. The Washington Post editorialized that: “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.’ It is still short of the necessary votes to overturn Roe.” Jim Hughes, national president of Campaign Life Coalition in Canada, applauded the U.S. Supreme Court and noted that the pro-life justices appointed by George W. Bush will be the president’s greatest pro-life legacy. The U.S. National Right to Life Committee, which had been at the forefront of the battle to ban PBA, also applauded the decision, noting it established the principle that some abortion restrictions are constitutionally permissible. But some pro-lifers didn’t find the decision very significant. American Life League president Judie Brown said, “The decision rendered today simply outlaws most of a particular type of abortion; it does not limit when an abortion can be done, nor does it limit abortions by other methods up through the moment of birth.” Others noted with some concern that neither Roberts nor Alito agreed with Thomas’s concurrent opinion that while the decision respects court precedents on abortion, “My view is that the court’s abortion jurisprudence … has no basis in the Constitution.” Still, it is a victory for those who fought to ban most PBAs. “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,” President Bush said in a statement. “We will continue to work for the day when every child is welcomed in life and protected in law.” |
In the 1990s, then-president Bill Clinton twice vetoed a federal ban on partial-birth abortion, a procedure in which a live child is mostly delivered except for his head, the skull is crushed or cut open and the brains suctioned out. The practice is so heinous and unnecessary – 300 to 3,000 such abortions occur out of more than one million surgical abortions annually – that twice, about a third of pro-abortion senators voted to ban the procedure. Some states considered the issue, including Nebraska, but in 2000, the Supreme Court overturned the law, saying the legislation did not have a sufficient exception to protect the life or health of the mother.
On April 18, the court ruled 5-4 that partial-birth abortions can be banned. Justice Anthony Kennedy wrote the majority decision, which said that the act’s opponents had “not demonstrated that the act would be unconstitutional in a large fraction of relevant cases.” The decision was tightly worded and silent about Roe. Justices Antonin Scalia and Clarence Thomas wrote a concurrent decision that supported the ban, but also spoke against Roe.
