Supreme Court Upholds Ban on Partial-Birth Abortion

By Randy Hall | July 7, 2008 | 8:23 PM EDT

(2nd Add: Includes reaction from President Bush.)

( - In a 5-4 decision, the U.S. Supreme Court ruled Wednesday that a 2003 federal ban on partial-birth abortions is constitutional, a decision quickly hailed by one conservative organization as a "monumental victory."

Writing for the majority, Justice Anthony Kennedy said that opponents of the Partial Birth Abortion Act of 2003 "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases."

Along with Chief Justice John Roberts, other justices voting to uphold the ban were Samuel Alito, Clarence Thomas and Antonin Scalia.

"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent with justices Stephen Breyer, David Souter and John Paul Stevens. 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."

"This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety," Eve Gartner, deputy director of litigation and law for the Planned Parenthood Federation of America, said in a news release.

"Today, the court took away an important option for doctors who seek to provide the best and safest care to their patients," Gartner added. "This ruling tells women that politicians, not doctors, will make their health-care decisions for them."

Wednesday's ruling, in the consolidated cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood, marks the first time the court has banned a specific procedure in a case over how -- not whether -- to perform an abortion.

More than one million abortions are performed in the country each year, according to recent statistics. Nearly 90 percent of those occur within the first 12 weeks of pregnancy and are not affected by Wednesday's ruling.

"This is a monumental victory for the preservation of human life," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which litigates pro-life issues. "By rejecting the lawsuits challenging the national ban, the high court demonstrated that this gruesome procedure has no place in the medical community.

"This decision represents an important shift in the ongoing battle to protect human life and represents a very significant pro-life victory in the abortion debate," Sekulow said in a statement.

"At long last, unborn children in the United States will be protected from the gruesome late-term partial-birth abortion procedure," stated Barbara Lyons, executive director for Wisconsin Right to Life.

'An End to the National Tragedy'

As Cybercast News Service previously reported, Congress approved the measure in October of 2003, when Republicans controlled both the Senate and the House of Representatives.

Partial-birth abortion involves the partial delivery of a baby, feet-first, with only the head remaining in the birth canal, at which point an incision is made in the base of the skull and the brain tissue suctioned out. The baby's remains are then delivered. In the case of a head-first presentation, the head is outside the body when the skull is collapsed.

Throughout the debate, opponents of the bill said it wouldn't hold up in court.

"What we are doing here is passing a piece of legislation that will be signed with great fanfare, and it will be declared unconstitutional across the street [at the Supreme Court]," Sen. Barbara Boxer (D-Calif.) said.

The Supreme Court struck down Nebraska's partial birth abortion ban in 2000. Following the ruling, pro-life advocates worked closely with lawmakers to craft a bill they felt would hold up to a test should it reach the high court again.

On November 6 of that year, federal judges in California and New York issued temporary restraining orders against the ban, which had been signed into law one day earlier by President Bush.

Three years later and one day after South Dakota voters rejected a state law banning most abortions on Nov. 7, 2006, the court heard arguments challenging the federal ban. In three separate cases brought by abortion advocates, lower courts had ruled that the ban is unconstitutional because it places an "undue burden" on the mother.

At the time, Rep. Steve Chabot (R-Ohio) -- author of the 2003 federal measure -- told Cybercast News Service that he was optimistic the court would uphold the ban and said two factors could result in a different decision.

First, the current, federal version of the bill contained what Chabot called "extensive medical evidence and extensive medical testimony from doctors who say that a partial-birth abortion is never medically necessary."

The second factor was the court itself. Since the 2000 decision, President Bush has appointed two new justices to the court -- Chief Justice John Roberts and Associate Justice Samuel Alito.

While Roberts replaced the conservative Chief Justice William Rehnquist, who died in September 2005, Alito replaced Justice Sandra Day O'Connor, a moderate who proved to be the deciding vote in the 5-4 decision in 2000.

On Wednesday, Chabot said in a news release: "I'm extremely pleased that partial-birth abortions, a procedure that many have referred to as infanticide, will no longer be performed.

"The Supreme Court's decision finally brings an end to the national tragedy of partial-birth abortion, an abhorrent practice that has no place in a civilized society," he noted.

"When drafting this legislation, we were confident that it would withstand constitutional scrutiny, and today's ruling confirms that belief," Chabot stated, adding that the law was the result of over eight years of research and analysis by Congress.

Also on Wednesday, President Bush released a statement noting: "I am pleased that the Supreme Court upheld a law that prohibits the abhorrent procedure of partial-birth abortion.

"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," Bush stated. "The partial-birth abortion ban, which an overwhelming bipartisan majority in Congress passed and I signed into law, represents a commitment to building a culture of life in America.

"The Supreme Court's decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life," he added. "We will continue to work for the day when every child is welcomed in life and protected in law."

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