In a 5-4 opinion authored by Justice Kennedy, the Supreme Court this morning has deemed constitutional the so-called Partial Birth Abortion Act of 2003.
The bill, which had been enjoined from enforcement until now, was Congress' effort to overturn the Court's 2000 opinion in Stenberg v Carhart, itself a 5-4 opinion, which had declared unconstitutional a Missouri effort to ban such procedures.
Via SCOTUSblog, until I have access to the opinion itself:
The Court said that it was upholding the law as written -- that is, its facial language. It said that the lawsuits challenging the law 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."
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."
Welcome to George Bush's Court.
e.t.a.: The Opinion of the Court in Gonzales v. Carhart is available here in PDF, and here in an easier-to-read HTML (if not easier to stomach). "KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined."
And let me put this in some context. Prof. Hadley Arkes, one of the leading intellectual architects of the pro-life movement (in addition to having been my thesis advisor, though we disagreed on many things, including this), predicted in a chilling October 2006 article what this opinion could portend:
[I]f Roberts and Alito help simply to overturn that prior decision on partial-birth abortion, my own judgment is that the regime of Roe will have come to its end, even if Roe itself is not explicitly overruled. What the Court would be saying in effect is, "We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion."
That would invite a flood of measures enacted by the states. They might be restrictions on abortion after the point of viability, for instance, or even earlier, with the first evidence of a beating heart. Or requirements that abortionists use a method more likely to yield the child alive. Or provisions that ban abortions on a child likely to be afflicted with disabilities, such as Down syndrome.
Each restriction would command the support of about 70 or 80 percent of the country, including many people who describe themselves as pro-choice. And step by step, the public would get used to these cardinal notions: that the freedom to order abortions, like any other kind of freedom, may be subject to plausible restrictions; that it is legitimate for legislatures to enact those restrictions; and that it is, in fact, possible for ordinary folk, with ordinary language, to deliberate about the grounds on which abortions could be said to be justified or unjustified.
Chip, chip, chipping away at Casey's "undue burden" test until a woman's right to control her reproductive decisions fundamentally disappears. This is not the last restriction which Republicans will try to pass -- and remember -- the Supreme Court was able to render this decision because the Senate (with Leahy, Byrd and Reid) and House (with 60+ Dems voting in favor) passed this bill. Want to overturn this legislation and prevent worse from coming in the future? Elect better legislators.
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