Simply describing partial-birth abortion is enough to revolt a majority of Americans, who have asked time and again for the barbaric, infanticidal practice to end. Yesterday, the Supreme Court acknowledged them.
The limited and careful 5-4 ruling upholds the broadly bipartisan Partial Birth Abortion Ban Act of 2003, which outlaws intentional partial-birth abortion with exceptions for endangerment to a mother’s life. The victory for commonsense morality and for constitutional jurisprudence is proof that under the Roberts court, careful abortion restrictions can begin to shift the law from the abortion-on-demand regime enacted in 1973 to one that better reflects public opinion and morals.
Writing for the 5-4 majority, Justice Anthony M. Kennedy rejected contentions that the act was unduly vague or burdensome. It targets the “intact dilation and extraction” procedure opposed by lawmakers as far left as Sen. Patrick Leahy and as clearly conservative as former Sen. Rick Santorum. It applies only in cases where the intent to deliver and kill is clear, and it does not prohibit other types of dilation and extraction. It provides doctors of “ordinary intelligence a reasonable opportunity to know what is prohibited” — as is the standard of the statute in question. In short, the law is limited, specific and humane. More than anything, the opposition reflects the effort of the abortion-rights lobby to stifle even the most reasonable curbs on the excesses of the Roe v. Wade era.
Accordingly, this 5-4 decision split the court ideologically, with Chief Justice John Roberts plus conservative Justices Antonin Scalia, Clarence Thomas and Samuel Alito siding with Justice Kennedy, while the court’s liberal wing of Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens dissented. Justice Ginsburg’s dissent is caustic. The court “tolerates, even applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists,” she laments.
How ironic to hear a defender of the post-Roe federally imposed abortion regime decry Congress’ partial-birth abortion ban. It was the abortion-rights left that federalized this issue in the first place by pressing its agenda in the courts. Now it protests when Congress bans a small number of abortions in the wake of numerous blocked state-level attempts? Sorry. Thirty states have tried to ban partial-birth abortion; courts have blocked the great majority of them. In the broader public, majorities consistently oppose the practice in polls. Far from imposing itself, in this case Congress enacts the will of the people previously frustrated by the courts and activist groups.
In conclusion, we’d like to highlight Justice Thomas’ one-paragraph concurring opinion, which we hope eventually will be the final word on the subject. “I write separately to reiterate my view that the Court’s abortion jurisprudence… has no basis in the Constitution.” Justice Scalia concurred.
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