- The Washington Times - Thursday, April 19, 2007

The Supreme Court yesterday upheld a federal law prohibiting partial-birth abortion, marking the first time a specific abortion procedure has been successfully outlawed.

The 5-4 ruling, which reversed the justices’ decision in a Nebraska case seven years ago, is the first major shift since Justice Sandra Day O’Connor retired from the court and was replaced by Justice Samuel A. Alito Jr.

Yesterday he provided the key fifth vote, joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, who wrote the majority opinion ruling that the government can ban a particular medical procedure if there are other options available and if the state has a reason to be concerned.

“When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the state is altogether barred from imposing reasonable regulations,” Justice Kennedy wrote. “The act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.”

Justice Ruth Bader Ginsburg, writing for the minority, said the ruling was “an effort to chip away at a right declared again and again by this court.” She was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

“Today’s decision is alarming,” Justice Ginsburg wrote. “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.”

Yesterday’s ruling overturned a federal appeals court decision that had struck down the law, passed by Congress in 2003 and signed by President Bush.

Since the Supreme Court declared abortion a constitutional right in its 1973 Roe v. Wade decision, it has become a defining issue in presidential elections. Rep. Steve Chabot, the Ohio Republican who sponsored the federal law, said yesterday’s decision was the result of Mr. Bush’s 2004 election victory and his ability to nominate two justices to the court.

“Elections matter, and had John Kerry been elected president a couple of years ago I think it’s clear that his judges would have been much more liberal than the two that the president appointed to the court,” Mr. Chabot said. “I think those who are pro-life and tend to be more conservative about values should be pleased that their hard work made a difference. Had the left won a couple of years ago, I think you would have seen a different decision here.”

In 2000, the court ruled 5-4 to strike down a Nebraska law banning partial-birth abortion, with Justice O’Connor joining the four justices who dissented in yesterday’s ruling. Justice O’Connor announced her retirement in 2005 and was replaced by Justice Alito.

In his opinion, Justice Kennedy said the federal law defined the exact procedure being banned more clearly than the Nebraska law, which allowed it to meet the court’s scrutiny. His opinion included a graphic description from a doctor and a nurse of the procedure, which involves a doctor delivering all but the head of a fetus, forcing scissors into the base of the fetus’s skull and making a hole, suctioning out the contents, then fully delivering the fetus.

Justice Kennedy said doctors will often not tell a woman the details of that procedure, but said it is “precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the state.”

Both sides of the debate predicted that the ruling will lead to more state legislatures moving ahead on restrictions, such as parental-notification laws.

“It took just a year for this new court to overturn three decades of established law. Today’s ruling is a stunning assault on women’s health and the expertise of doctors who care for them,” said Nancy Northup, president of the Center for Reproductive Rights, which challenged the ban successfully in federal district court. “The court has dramatically reduced the ability of doctors to provide services that, in their opinion, are the safest, best options to protect women’s health.”

Dr. LeRoy H. Carhart, the lead plaintiff in both the Nebraska law challenge and in yesterday’s case (Gonzales v. Carhart), said, “What a difference seven years, a new president, and two new justices, can make.

“Many of the women in my practice have grown up in the post-Roe era; they believed they had a constitutionally protected right to abortion. But with this ruling, I’m afraid that era is over,” he said.

James Bopp Jr., a prominent pro-life lawyer, said the decision rejects the pro-choice side’s argument that restrictions on abortion could be invalidated because of hypothetical situations, a finding that could carry over to other abortion cases.

“I think the court put an end to that here,” Mr. Bopp said, adding the ruling puts a new burden on pro-choice plaintiffs. “They’re going to have to show a significant number of circumstances, and that’s going to be difficult.”

Justice Thomas wrote a concurring opinion, joined by Justice Scalia, in which the two repeat their position that they find “no basis in the Constitution” for the underlying right to an abortion established by Roe v. Wade. While the other three justices in the majority yesterday did not join that opinion, Mr. Bopp said not to read any deeper meaning into that.

“This doesn’t tell us what Roberts or Alito think,” he said.

Still, some pro-life activists saw reasons for hope.

“It signals a new sensitivity on the part of the court to the plight of the unborn child in a late-term abortion,” said Joseph M. Scheidler, National Director of the Chicago-based Pro-Life Action League. “The whole pro-life movement has been energized by this 5-4 victory. We may now have our Supreme Court majority.”

• Amy Fagan contributed to this report.

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