Apr 18, 11:35 AM EDT
Associated Press Writer
WASHINGTON (AP) -- The Supreme Court upheld the
nationwide ban on a controversial abortion procedure
Wednesday, handing abortion opponents the long-awaited
victory they expected from a more conservative bench.
The 5-4 ruling said the Partial Birth Abortion Ban Act
that Congress passed and President Bush signed into
law in 2003 does not violate a woman's constitutional
right to an abortion.
The opponents of the act "have not demonstrated that
the Act would be unconstitutional in a large fraction
of relevant cases," Justice Anthony Kennedy wrote in
the majority opinion.
The administration defended the law as drawing a
bright line between abortion and infanticide.
The decision pitted the court's conservatives against
its liberals, with President Bush's two appointees,
Chief Justice John Roberts and Justice Samuel Alito,
siding with the majority.
Justices Clarence Thomas and Antonin Scalia also were
in the majority.
It was the first time the court banned a specific
procedure in a case over how - not whether - to
perform an abortion.
Abortion rights groups as well as the leading
association of obstetricians and gynecologists have
said the procedure sometimes is the safest for a
woman. They also said that such a ruling could
threaten most abortions after 12 weeks of pregnancy,
although government lawyers and others who favor the
ban said there are alternate, more widely used
procedures that remain legal.
The outcome is likely to spur efforts at the state
level to place more restrictions on abortions.
"I applaud the Court for its ruling today, and my hope
is that it sets the stage for further progress in the
fight to ensure our nation's laws respect the sanctity
of unborn human life," said Rep. John Boehner of Ohio,
Republican leader in the House of Representatives.
Said Eve Gartner of the Planned Parenthood Federation
of America: "This ruling flies in the face of 30 years
of Supreme Court precedent and the best interest of
women's health and safety. ... This ruling tells women
that politicians, not doctors, will make their health
care decisions for them." She had argued that point
before the justices.
More than 1 million abortions are performed in the
United States each year, according to recent
statistics. Nearly 90 percent of those occur in the
first 12 weeks of pregnancy, and are not affected by
Six federal courts have said the law that was in focus
Wednesday is an impermissible restriction on a woman's
constitutional right to an abortion.
The law bans a method of ending a pregnancy, rather
than limiting when an abortion can be performed.
"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
She was joined by Justices Stephen Breyer, David
Souter and John Paul Stevens.
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
Kennedy's dissent in 2000 was so strong that few court
watchers expected him to take a different view of the
Kennedy acknowledged continuing disagreement about the
procedure within the medical community. In the past,
courts have cited that uncertainty as a reason to
allow the disputed procedure.
But Kennedy said, "The law need not give abortion
doctors unfettered choice in the course of their
He said the more common abortion method, involving
dismemberment, is beyond the reach of the federal ban.
While the court upheld the law against a broad attack
on its constitutionality, Kennedy said the court could
entertain a challenge in which a doctor found it
necessary to perform the banned procedure on a patient
suffering certain medical complications.
Doctors most often refer to the procedure as a
dilation and extraction or an intact dilation and
The law allows the procedure to be performed when a
woman's life is in jeopardy.
The cases are Gonzales v. Carhart, 05-380, and
Gonzales v. Planned Parenthood, 05-1382.