Supreme Court backs abortion procedure ban

The Baltimore Sun

WASHINGTON -- The Supreme Court changed course on abortion yesterday and cleared the way for states to pass laws designed to discourage women from ending their pregnancies.

In a 5-4 decision, the court said the "government has a legitimate and substantial interest in preserving and promoting fetal life." The ruling upheld a federal ban on a disputed midterm abortion method that critics call "partial-birth abortion."

Seven years ago, the court, also by a 5-4 margin, struck down a nearly identical state law on the grounds that it could force some women to undergo riskier surgery during the fourth or fifth month of a pregnancy. But the retirement of Justice Sandra Day O'Connor in early 2006 and President Bush's choice of Justice Samuel A. Alito Jr. to succeed her tipped the balance the other way.

It was the first time the court has upheld a ban on an abortion procedure. Although yesterday's opinion stopped well short of overturning the 1973 Roe v. Wade decision that established a constitutional right to abortion, the majority said it was prepared to uphold new restrictions on doctors who perform them and women who seek them.

Justice Anthony M. Kennedy, speaking for the court, said the government may not forbid abortion outright, but it "may use its voice and its regulatory authority" to dissuade women from ending pregnancies.

The banned procedure will "encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions," he added.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Alito joined Kennedy's opinion.

In a separate statement, Thomas and Scalia said again that they would vote to overrule Roe v. Wade entirely.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

"I applaud the court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life," said House Republican leader John A. Boehner of Ohio.

The decision also is likely to throw the abortion issue into the campaign for the White House. Two of the court's strongest supporters of the right to abortion are also its oldest justices: Justice John Paul Stevens will be 87 on Friday, and Justice Ruth Bader Ginsburg is 74. Whoever wins the 2008 presidential election might get the chance to nominate one or more new justices.

Ginsburg, the court's only woman, called yesterday's decision "alarming."

It "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court," she said.

She noted that this dispute was about how, not whether, abortions would be performed during the second trimester. Despite Kennedy's talk of "promoting fetal life," the banned procedure "targets only a method of abortion," she said. "The woman may abort the fetus, so long as her doctor uses another method, one her doctor judges less safe for her."

She also called the decision demeaning to women. It "pretends" to protect them "by denying them any choice in the matter," she said.

Stevens and Justices David H. Souter and Stephen G. Breyer joined her dissent.

The ruling culminates a 12-year campaign by the National Right to Life Committee to outlaw the procedure that its leaders first dubbed "partial-birth abortion." They said the procedure was akin to "infanticide" because the fetus was killed just as it emerged from the mother's body.

Bush praised the decision as a step toward "protecting human dignity and upholding the sanctity of human life." He signed the ban into law four years ago, but it had been struck down as unconstitutional by three lower courts.

Abortion-rights advocates voiced outrage.

"Today's ruling is a stunning assault on women's health and the expertise of doctors who care for them," said Nancy Northrup of the Center for Reproductive Rights. "This court believes that members of Congress - not doctors - are in the best position to make medical decisions for their patients."

In one sense, the ruling might have more symbolic than practical significance. By most estimates, the procedure is used in less than 5,000 of the more than 1.3 million abortions performed nationwide each year.

But the legal battle turned on the old question of whether a woman and her doctor, or elected lawmakers, should decide on abortion.

Most abortions - between 85 percent and 90 percent - are done in the first three months of pregnancy. In those cases, the fetus is removed through a suction tube.

Later in a pregnancy, however, some form of surgery is required. At this stage, most doctors give the woman anesthesia and use instruments to remove the fetus in pieces. This procedure is known as a "dilation and evacuation," or D&E;, and it remains legal.

Some doctors who perform second-term abortions said it was safer and less risky to remove the fetus intact because that method is less likely to expose the woman to injury, bleeding or infection. Usually, doctors would crush the skull, or drain its content, to permit its removal. This method has been referred to as a "dilation and extraction," or D&X.;

The D&X; procedure was made a crime by Congress in the Partial-Birth Abortion Ban Act of 2003. The law permits doctors to use the banned procedure if it is necessary to save the mother's life. But there is no exception for instances where doctors say it is needed to preserve her health.

Dr. LeRoy Carhart of Bellevue, Neb., brought a successful challenge to Nebraska's law in 2000. He also sued to strike down the federal ban but was on the losing end in yesterday's ruling in Gonzales v. Carhart.

The court's opinion sets out two major changes in the law of abortion.

Since the Roe decision in 1973, the justices have examined abortion laws before they go into effect and have struck down those that might threaten the life or health of some women in the future. These pre-enforcement challenges are referred to as "facial challenges."

Now, the court said it would allow such abortion laws to go into effect first when they do not raise a broad constitutional problem. Challengers still may bring an "as applied" suit, Kennedy said. For example, if doctors can show the D&X; procedure is needed for women who have a "particular [medical] condition," they could seek a court order that exempts them from the law, he said.

Secondly, the court in the past said it would strike down abortion laws that might threaten the health of some patients. Kennedy's opinion acknowledged that some nationally recognized medical experts testified that the ban on the D&X; procedure could "create significant health risks" for some women who undergo midterm abortions.

But that alone is not enough to void the law, he concluded. There are other safe methods of performing these abortions, he said, and doctors are not entitled to "unfettered choice in the course of their medical practice."

The ruling highlights again Kennedy's central role, not only on the court in general but on abortion in particular. In 1992, he cast a decisive fifth vote to preserve Roe v. Wade and the right to abortion.

Although he is personally opposed to abortion, he has said he was not willing to overturn a long-standing constitutional right. At the same time, he has said the government could strictly regulate abortion and seek to dissuade women from ending their pregnancies. He repeated both points in yesterday's opinion.

He also left no doubt that he found the disputed procedure abhorrent.

For Roberts and Alito, the ruling was their first major decision on abortion, and it made clear both will support stricter regulation. But it remains unclear whether they would vote to overturn Roe v. Wade entirely if given a chance.

Advocates on both sides of the abortion issue said the ruling underscored the importance of elections.

Conservatives said support for Bush and his Supreme Court nominees had paid off.

Nancy Keenan, president of NARAL Pro-Choice America, agreed that "elections matter."

"An anti-choice Congress and anti-choice president pushed this ban all the way to the Supreme Court," she said.

David G. Savage writes for Los Angeles Times. The Associated Press contributed to this article.

A 5-4 decision

The Supreme Court ruled the federal Partial-Birth Abortion Ban Act does not violate a woman's constitutional right to an abortion.

FOR THE BAN

Justice Anthony M. Kennedy (wrote decision)

Chief Justice John G. Roberts Jr.

Justice Samuel A. Alito Jr.

Justice Antonin Scalia

Justice Clarence Thomas

AGAINST THE BAN

Justice Ruth Bader Ginsburg (wrote dissent)

Justice Stephen G. Breyer

Justice David H. Souter

Justice John Paul Stevens

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