Ruled, 5-4, that the nationwide ban does not violate a woman’s right to an abortion.
I haven’t been able to find the decision yet, but will update when it’s available. (UPDATE 4: Thanks to sunburned counsel in comments, here’s the decision. It’s a pdf, so be forewarned.)
UPDATE 1: The AP is adding on to the story. Looks like Kennedy wrote the opinion, and Ginsberg the dissent:
“Today’s decision is alarming,” Justice
Ruth Bader Ginsburg wrote in dissent. She said the ruling “refuses to take … seriously” previous Supreme Court decisions on abortion.
Ginsburg said the latest decision “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.”
UPDATE 2: More info, this time from the NYT’s version of the AP story:
The procedure at issue involves partially removing the fetus intact from a woman’s uterus, then crushing or cutting its skull to complete the abortion.
Abortion opponents say the law will not reduce the number of abortions performed because an alternate method — dismembering the fetus in the uterus — is available and, indeed, much more common.
In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman’s right to make an abortion decision.
The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman’s health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.
But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday’s ruling.
Kennedy’s dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.
Thank you, Anthony Kennedy.
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.” His opinion noted that the Bush Administration “has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained.” . . .
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.”
That final comment, concluding remarks delivered matter-of-factly, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is “differently imposed that it was when we last considered a restrictive abortion regulation” — in Stenberg in 2000.
- Supreme Court News by zuzu June 29, 2006
- Abortion and the Roberts Court by Jill November 7, 2006
- Oregon’s Death with Dignity Law Upheld by Jill January 17, 2006
- Marry Me, Josh Lyman by Jill February 6, 2008
- The Bush Legal Legacy: More Whites, Men, and Conservatives by Jill December 9, 2008