Dividing 5-4, the Supreme Court on Wednesday gave a sweeping — and only barely qualified — victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called “partial-birth abortions.” The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents, saying the majority had not concealed its “hostility” to those decisions.
Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure — prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.
The Court said that it was upholding the law as written — that is, its facial language. It said that the lawsuits challenging the law faciallly 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 an 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…The Act allows…a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right.” His opinion noted that the Bush Administration “has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained.”
The majority said it had not “uncritically” deferred to Congress’ factual findings in passing the Partial-Birth Abortion Ban Act of 2003 — including its finding that the banned procedure was never medically necessary. “We do not in the circumstances here place dispositive weight on Congress’ findings,” Kennedy wrote, adding that the Court also was not accepting the Bush Administration argument that the law could be upheld on the basis of those findings alone. He added: “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”
Kennedy insisted — contrary to the dissenters’ angry claim — that the Court had not abandoned its prior abortion rulings. “The Court’s prececedents,” he said, “instruct that the Act can survive this facial attack.” He said there was “medical disagreement whether the Act’s prohibition would ever impose significant health risks on women” — a prohibition based in significant part on the finding that the procedure was never medically necessary.
But Kennedy said the Act could stand “when medical uncertainty persists…The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Quoting from a 1974 ruling (Marshall v. U.S.), the opinion said that “When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.”
Justice Ruth Bader Ginsburg, speaking 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.
Now would be a good time for some of the strong female voices in this community to speak up and help me understand all the issues related to this decision. I am a staunch defender of a woman’s right to choose, and I have always considered the partial-birth abortion issue to be a phony issue. But I am neither a lawyer nor an expert on reproductive issues. Whether you want to leave a comment, or do a diary with more comprehensive treatments, please weigh in and help me understand what this decision really means and what consequences it will have.