Communications Department

LA Times: Abortion ruling marks a 1st for high court

Apr 18, 2007 | PBA

What follows is an report that appeared on the website of the Los Angeles Times on April 18, 2007.

Abortion ruling marks a 1st for high court
Justices rule 5-4 that Partial Birth Abortion Ban Act is lawful. It’s the first time the court has approved a limit on abortion.

By David G. Savage
Times Staff Writer

12:14 PM PDT, April 18, 2007

WASHINGTON — The Supreme Court changed course on abortion today, upholding a national ban on a disputed midterm abortion procedure and ruling that the government has “a legitimate and substantial interest in preserving and promoting fetal life.”

The 5-4 decision marks the first time the court has upheld a ban on an abortion procedure. A similar ban was struck down seven years ago, but the retirement of Justice Sandra Day O’Connor and President Bush’s choice of Justice Samuel A. Alito Jr. tipped the balance in favor of the ban on “partial-birth abortions.”

Today’s ruling does not directly challenge the basic right to abortion set in Roe vs. Wade, but it gives states and the federal government more leeway to impose “reasonable regulations” on abortion doctors.

President Bush, in a statement issued by the White House, welcomed the decision. “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 said. “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.”

Sen. Dianne Feinstein (D-Calif.) said she was “truly shocked” by the decision, which she called “a major strike against a woman’s right to choose … (that) will put women’s lives in jeopardy.” Noting that the court majority included Alito, who replaced retired Justice Sandra Day O’Connor, Feinstein faulted “President Bush’s efforts to nominate judges whose views are out of the mainstream of American legal thought.”

Speaking for the court majority, Justice Anthony M. Kennedy wrote that the government has “an interest in promoting respect for human life at all stages in the pregnancy. The law need not give abortion doctors unfettered choice in the course of their medical practice.”

Kennedy said the ban on partial-birth abortions may “encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.”

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Alito joined Kennedy’s opinion.

In dissent, Justice Ruth Bader Ginsburg called the decision “alarming.”

It “cannot be understood as anything other than an effort to chip away at a right declared again and again by this court,” she said.

The ruling culminates a 12-year campaign by the National Right to Life Committee to outlaw the procedure that its leaders dubbed “partial birth abortion.”

Most abortions — between 85% to 90% — are done in the first three months of pregnancy, and the fetus is removed through a suction tube. But later in a pregnancy, some form of surgery is required.

At this stage, most doctors give the woman anesthesia and use instruments to remove the fetus in pieces. This procedure is known as a “dilation and evacuation,” or D & E.

Some doctors believed it was safer and less risky to remove the fetus intact. They said this procedure resulted in less chance of injury, bleeding or infections. Usually, doctors would crush the skull, or drain its content, to permit its removal. This method has been referred to as a “dilation and extraction,” or D & X.

This D & X procedure was made a crime by Congress in the Partial Birth Abortion Ban Act of 2003. Advocates said it was akin to “infanticide” because the unborn child could be alive when it was being removed and its skull crushed.

Kennedy made clear he found the procedure abhorrent as well. Speaking in the court, he said some women regret their decision to have an abortion. She would suffer “grief more anguished and sorrow more profound when she learns, only after the event, that she allowed a doctor to pierce the skill and vacuum the fast-developing brain of her unborn child.”

The doctors, who challenge the law, said it will force them to perform riskier surgery on their patients. It will not save the lives of “unborn children,” they argued.

In the past, the court had said the law may not threaten the health of women seeking abortions. That rationale was used in striking down the similar ban on partial birth abortions seven years ago.

Kennedy’s opinion leaves open the possibility that doctors could bring a narrowly targeted challenge to the law. If they can identify a “particular (medical) condition,” which demands the D & X procedure, they may be able to obtain a court order allowing the surgery, he said.

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