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Supreme Court Upholds Partial-Birth Abortion Ban

April 18, 2007 at 12:00 AM EDT
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JUDY WOODRUFF: At issue in today’s ruling was the federal law banning a controversial medical procedure often referred to as partial-birth abortion. Congress approved the ban, and President Bush signed it into law in 2003, only to have lower courts in California, Nebraska and New York determine it was unconstitutional.

Today, the Supreme Court weighed in, with a majority of five justices, led by Anthony Kennedy, stating that the ban on the procedure, which doctors call intact dilation and extraction, did not create an undue burden on a woman’s right to an abortion.

Joining us to discuss the decision and its implications is NewsHour regular Marcia Coyle of the National Law Journal. Marcia, it’s good to have you with us.

MARCIA COYLE, National Law Journal: Thanks, Judy.

JUDY WOODRUFF: First of all, let me ask you to define this procedure at issue. We know the opponents call it partial-birth abortion. We’re told in the medical community it’s referred to as intact dilation and extraction.

MARCIA COYLE: Well, first of all, it’s not a very common procedure, and it’s used primarily in second-trimester abortions. It’s the removal of the fetus by forceps through the cervix as intact as possible in order to minimize tissue retention and trauma to the cervix and the uterus.

JUDY WOODRUFF: And, again, as you say, not a common procedure…

MARCIA COYLE: Right, the more standard procedure is known as dilation and evacuation. And there, the fetus is removed with forceps and a vacuum and generally comes out in pieces.

JUDY WOODRUFF: Now, the Congress, as we just said, passed this law in 2003 to ban the procedure.

MARCIA COYLE: Correct.

JUDY WOODRUFF: The challengers came along, questioned the constitutionality. And today the Supreme Court, 5-4 ruling, said it is constitutional. They upheld it.

MARCIA COYLE: Yes, they did.

The health exception issue

Marcia Coyle
National Law Journal
The first point was that this statute was more precise than a state statute on partial-birth abortion that the court struck down seven years ago, so he felt the void for vagueness argument fell by the wayside.

JUDY WOODRUFF: Anthony Kennedy for the majority.

MARCIA COYLE: Yes, and his decision -- to boil it down, because it is a lengthy decision and has many aspects to it -- he addressed basically two challenges here, one that the statute as written was unconstitutionally void for vagueness, in that the language was so broad that it covered certain abortion procedures that are legal, other than intact D&E, and also that it did not give clear enough guidelines to doctors to know when they were moving into an area during the procedure that now, under this law, is criminalized.

JUDY WOODRUFF: Now, I also want to read, Marcia, another quote -- you and I were discussing this ahead of time -- from the majority opinion. Again, this is written by Justice Kennedy. He said, "Congress could nonetheless conclude that the type of abortion proscribed by the act requires specific regulation, because it implicates additional ethical and moral concerns that justify a special prohibition."

He went on to write, "Congress determined that the abortion method it proscribed had a disturbing similarity to the killing of a newborn infant."

MARCIA COYLE: OK, in his decision, the first point was that this statute was more precise than a state statute on partial-birth abortion that the court struck down seven years ago, so he felt the void for vagueness argument fell by the wayside. It offered clear guidance.

But then he also said -- and he addressed probably the central battle in this, under this law -- he looked at whether this law was unconstitutional because of imposed and undue burden on a woman's right to choose, because it lacked a health exception.

And here is where he said that the states, in the face of medical uncertainty as to whether there were health risks imposed by this procedure, had room to legislate. This was different from what the court did seven years ago when it said, in the face of substantial, uncertainty over health or medical risks, Congress must include a health exception.

Ruth Bader Ginsburg's dissent

Marcia Coyle
National Law Journal
And it's grounded in a woman's autonomy and her dignity. And [Ginsburg] felt that the court's reasons here for allowing the ban to stand without a health exception were not justified.

JUDY WOODRUFF: So he's putting the well-being of the fetus ahead of the health of the mother?

MARCIA COYLE: It may be read that way, but he believes he's doing a balancing here, because there was evidence on one side of risk, evidence on the other side contrary to that.

But he also said that there are moral concerns that the government can take into consideration when it is legislating in order to protect, to preserve the life of the fetus. It's a legitimate interest, and that's when he spoke about how it may approximate, in some eyes, the killing of a living human being.

JUDY WOODRUFF: Now the dissent, written by Justice Ruth Bader Ginsburg, she read the dissent, which you were telling me is not the norm. She read it from the bench. And just, again, a very quick quote. She said, "Today's decision" -- she's referring to the majority -- "is alarming. It 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."

And she went on to write, "The court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of protecting women recalls ancient notions about women's place in society and under the Constitution ideas that have long since been discredited," Justice Ginsburg.

MARCIA COYLE: She believes the majority has walked away from the past precedents on abortion. The health exception, the exception to abortion regulations to preserve the health of the woman, she said, has been a central tenet of those prior decisions. And it's grounded in a woman's autonomy and her dignity. And she felt that the court's reasons here for allowing the ban to stand without a health exception were not justified.

Composition of the court

Marcia Coyle
National Law Journal
We no longer have Justice Sandra Day O'Connor, who seven years ago made the difference in striking down the Nebraska statute that was very similar to the national law that the court upheld today.

JUDY WOODRUFF: She also writes about the court, the majority walking away from precedent.

MARCIA COYLE: She said, make no doubt what this law was. This law was an attempt, she said, to chip away at a right that the court has enunciated and supported time and time again, for more than 30 years. And she said, what's different today is the composition of the court.

We no longer have Justice Sandra Day O'Connor, who seven years ago made the difference in striking down the Nebraska statute that was very similar to the national law that the court upheld today. Justice Alito replaced Justice O'Connor. He joined the majority; he made the difference.

JUDY WOODRUFF: So the composition of the court matters?

MARCIA COYLE: Absolutely. And she said, in closing, that she felt this -- because of the change, that this decision should not have staying power, hinting that maybe, down the road, there will be other changes, other presidents, and this decision won't stand the test of time.

JUDY WOODRUFF: Marcia, what about the effect of this going forward?

MARCIA COYLE: I think both sides in the abortion battle view this decision as a major shift in the court in how the court has viewed abortion.

I think that a potential impact is that those who oppose abortion are going to be energized, as Justice Ginsburg noted, to seek additional restrictions on abortion at the state level and also at the federal level. This is a national statute. This is a national ban on a particular abortion method.

I think groups that support the woman's right to choose didn't find much of anything good about this decision and believe that what will ultimately happen is more women, women who were found to need this particular procedure, were going to be at risk and at serious risk.

JUDY WOODRUFF: In other words, we're going to be hearing a good deal more about this ruling.

MARCIA COYLE: Oh, it's not over by a long shot.

JUDY WOODRUFF: Marcia Coyle, thank you very much.

MARCIA COYLE: Thank you.