U.S. Supreme Court Veers Right with Vote to Uphold Abortion Ban

By Anastacia Mott Austin

On Wednesday, the U.S. Supreme Court voted 5-4 to uphold the federal Partial-Birth Abortion Ban Act signed by President Bush in November of 2003. Advocates on both sides of the abortion debate agree this vote portends potentially historic changes in abortion laws across the country.

The ruling was the first in U.S. history to endorse a ban on any type of abortion.

The White House released a statement to the press in which President Bush said, "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."

Justice Anthony Kennedy spoke for the court: "[The ban] will encourage some women to carry the infant to full term, thus reducing the absolute number of abortions." He also wrote in the majority opinion that the ban might protect women from undergoing a procedure they may not completely understand, and may later regret, according to the New York Times. "…it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." The Los Angeles Times reports that while Kennedy is personally against abortion, until now he has not been disposed to dismantling constitutional rights. However, he included in the majority decision report that government might "use its voice and its regulatory authority" to convince women not to have abortions.

In a strong dissent to the majority opinion, Ruth Bader Ginsburg expressed the sentiment that women did not need the government to protect them from their own regret, calling the majority ruling "paternalistic." In the minority report, she wrote, "…the court shields women by denying them a choice in the matter…[the law] 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." Ginsburg also found problematic the fact that the ban does not provide an exception for the safety of a woman’s health.

While opponents to abortion call this type of procedure "partial birth abortion," the medical community calls it "intact dilation and extraction." The details of the new law stipulate that any doctor who performs the prohibited method could face fines or jail time.

Though the ban was signed into law by President Bush in 2003, it has been prevented from taking effect by the rulings of lower courts, until now. In 2000, the U.S. Supreme Court voted 5-4 against a very similar state law, but the retirement of Sandra Day O’Connor and the new appointments of Justice Samuel Alito and Chief Justice John Roberts have in effect changed the tenor of the court, something long hoped-for by pro-lifers and feared by pro-choice advocates.

The timing of the vote propels it into the center of political debate as a hot-button 2008 election issue. Responses from upcoming presidential candidates on both sides were predictably party-affiliated. Republican candidate Rudy Guilani told reporters that the court "reached the correct conclusion," while John McCain (R-Ariz), added, "[It is] a victory for those who cherish the sanctity of life and integrity of the judiciary." Hilary Clinton stated, "It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations," while Barack Obama said, "I strongly disagree with today’s Supreme Court ruling, which dramatically departs form previous precedents safeguarding the health of pregnant women." John Edwards issued a press release in which he stated, "This hard right turn is a stark reminder of why Democrats cannot afford to lose the 2008 election."

Other prominent community leaders had equally strong opinions. Nancy Keenan, president of NARAL Pro-Choice America, told reporters, "The court has given anti-choice state lawmakers the green light to open the flood gates and launch additional attacks on safe, legal abortion, without any regard for women’s health," while Tony Perkins of the Family Research Council said, "This will bolster state legislators who are reflecting the views of their constituents on abortion."

One of the sponsors of the federal law, state representative Steve Chabot (R-Ohio), expressed his view that the ban "forced many people to consider what actually occurs when an abortion is carried out." Those who disagree with him explain that it isn’t just that they want to preserve this particular, rare form of abortion, but that the ruling on it would form a precedent for future cases in which a woman’s rights could be even further narrowed.

Dr. LeRoy Carhart, the plaintiff in one of the cases presented to the court (Gonzalez vs. Carhart, 05-380), issued a statement to the press in which he stated, "When the Supreme Court considered this issue seven years ago, they agreed that women’s health was a paramount concern and doctors, not politicians, were in the best position to decide what procedures were safest. What a difference seven years, a new president and two new Justices can make."

While few seem to hold a neutral stance on the topic, there is one thing most agree on: this ruling is historically important, and could very well change the status of abortion rights in the United States.

The Justices who voted to uphold the federal Partial-Birth Abortion Ban were Chief Justice John Roberts, Justice Anthony Kennedy, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito. Those opposed to the ban were Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice David Souter, and Justice John Paul Stevens.