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Supreme Court upholds partial birth abortion ban
Michael Roston
Published: Wednesday April 18, 2007
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In a 5-4 decision today, the Supreme Court upheld a 2003 federal ban on so-called "Partial Birth Abortions," in what has been described at the SCOTUSBlog as "the first-ever decision by the Court to uphold a total ban on a specific abortion procedure."

Justice Anthony Kennedy led the majority with Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas.

In the majority opinion, Kennedy wrote that the law was being upheld "as written -- that is, its facial language," according to Lyle Denniston at SCOTUSBlog. "It said that the lawsuits challenging the law should not have been allowed in court 'in the first instance.'"

Kennedy believed that the law offered enough opportunities for women to have "safe medical options," other than so-called "partial-birth abortions."

Justice Ruth Bader Ginsburg, in a lengthy dissent, slammed the majority's decision for what she said applauded "federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."

She added, "For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman's health."

Ginsburg also warned that the Court's upholding of the ban "cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives."

Denniston noted that the decision marked a major sign of the change in the court's political composition in the aftermath of the resignation of Justice Sandra Day O'Connor and her replacement with Justice Samuel Alito.

"Alito's replacement of retired Justice Sandra Day O'Connor made the difference in turning the Court around from its 2000 decision in the Stenberg case," which overturned another ban on the so-called "partial birth" abortion procedure.

However, another Supreme Court watcher called the decision "very narrow."

"The Court distinguished but did not overrule Stenberg v. Carhart, and upheld the federal statute under the Casey plurality "undue burden" test," said Orin Kerr at the Volokh Conspiracy.

Still, conservative commentators were happy with the decision.

Describing it as "a significant victory," the National Review's Ed Whelan said at the 'Bench Memos' blog described the decision as signifying a Supreme Court that "is disinclined to continue to have special ad hoc rules that uniquely favor those who challenge abortion regulations."

On Capitol Hill, Republican Minority Leader Rep. John Boehner (R-OH) said the upholding of the ban "reaffirms not only the sanctity of life, but the integrity of a legislative process that allows the American people to make laws and decisions through their elected representatives," in a statement.

He also hoped the decision "sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life."

And Senator John McCain (R-AZ) used the decision to attempt to shore up his "pro-life" credentials in the course of his quest for the 2008 Republican nomination for president.

"Today's Supreme Court ruling is a victory for those who cherish the sanctity of life and integrity of the judiciary," he said in a statement. "The ruling ensures that an unacceptable and unjustifiable practice will not be carried out on our innocent children. It also clearly speaks to the importance of nominating and confirming strict constructionist judges who interpret the law as it is written, and do not usurp the authority of Congress and state legislatures. As we move forward, it is critically important that our party continues to stand on the side of life."

But Rep. Lynn Woolsey (D-CA), Co-Chair of the Congressional Progressive Caucus, assailed the decision, warning that it was "a frightening and dangerous step towards criminalizing the very constitutional freedoms that previous courts have upheld for generations."

She added, "This ban provides no exceptions, even when needed to save the health and life of the mother, and flies in the face of medical science."

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