By Paul Tuns
The Interim

On June 28, the United States Supreme Court ruled against Nebraska’s partial-birth abortion ban, dealing a blow to 30 other states that prohibit or regulate a procedure that is aptly described as infanticide.

In the 5-4 Stenberg v. Carhart decision, written by Justice Stephen Breyer, the court faulted the ban for its broad language, which critics claim endangers the legality of all abortion, and the absence of an exception to preserve the woman’s health.

In a concurring opinion, Justice Sandra Day O’Connor wrote that a more specific ban and one allowing for maternal health exceptions could be constitutional, but that the Nebraska statute placed an “undue burden” on a woman’s “right” to abortion.

In his dissent, Justice Clarence Thomas attacked the majority opinion as “grievously wrong” and defended the state’s right to out-law what “so closely borders on infanticide.” He called the court’s decision “indefensible” and criticized its “hostility to any abortion regulation.”

In its 1992 Planned Parenthood v. Casey decision, the court said states may “express profound respect for the life of the unborn,” yet in Stenberg v. Carhart it would not allow even simple restrictions on a procedure the American Medical Association says is never medically necessary. Justice Thomas said the ban is “not designed to strike at the right itself,” but “without a doubt, expresses profound respect by prohibiting a procedure that approaches infanticide, and thereby dehumanizes the fetus and trivializes human life.” He said the ‘partial birth’ gives the fetus autonomy which separates it from the right of the woman to choose treatments for her own body,” therefore its rights are no longer subordinate to its mother’s.

Voting to overturn the ban were Justices Breyer, O’Connor, Ruth Bader Ginsburg, David Souter and John Paul Stevens. Dissenting were Chief Justice William Rehnquist and Justices Thomas, Antonin Scalia, and Anthony Kennedy.

Justice Breyer found no compelling state interest to warrant abridging abortion rights. But Justice Kennedy said Nebraska attempted to “forbid” a procedure many decent and civilized people find so abhorrent as to be among the most serious crimes against human life.”

Family Research Council executive vice-president Chuck Donovan described the decision as “odious” and labelled it “the cruelest, most unjust ruling in American history.” James Bopp, general counsel of the National Right to Life Committee, called the decision a “radical expansion of the right to abortion.”

Nebraska Attorney-General Don Stenberg said the Supreme Court majority will support any form of abortion, “no matter how barbarous, no matter how unjustified.” Nebraska officials vow to pass another law to meet the court’s requirements. But Lt. Gov. Dave Maurstad said, “It’s clear to me the court is saying ‘abortion, anytime, anyway is the law of the land.'”

American Life League president Judie Brown said the decision illustrates the need for a Human Life Amendment to the constitution “The Court has expanded the right to kill children at every stage including childbirth,” she said. Brown added, “While some appear more gruesome than others, the result of every act of abortion and infanticide is the death of a child, and every such act should be outlawed.”