US Supreme Court allows late-term abortion ban

The 5-to-4 ruling upholds a ban on 'partial-birth' abortion. In 2000, the court had struck down a similar ban.

By , Staff writer of The Christian Science Monitor

In a major ruling dealing with abortion rights in America, the US Supreme Court has upheld a federal law banning certain late-term abortions.

In a 5-to-4 decision announ-ced Wednesday, the high court upheld the Partial-Birth Abortion Ban Act of 2003. The move comes nearly seven years after the Supreme Court declared a similar Nebraska law unconstitutional because it lacked an exception to protect a woman's health.

This time a different lineup of justices upheld a federal version of essentially the same law, even though it does not contain a so-called health exception that would permit the banned abortion procedure when a physician deemed it necessary to safeguard a woman's health.

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The decision marks the first time since the landmark abortion precedent Roe v. Wade in 1973 that the nation's highest court has ruled in a way that places considerations of a woman's health as secondary to efforts by the government to restrict abortion procedures performed prior to fetal viability. That shift could embolden antiabortion forces to try to enact more restrictions at the state level.

Writing for the majority in Wednesday's decision, Justice Anthony Kennedy said the lack of a health exception does not automatically render the statute unconstitutional. "Whether the act creates significant health risks for women has been a contested factual question," he writes. "Both sides have medical support for their position."

Instead of a theoretical "facial" attack on the law, the court said such issues should be resolved in individual cases testing how the partial-birth abortion ban act was being applied to a particular woman.

"In an as-applied challenge the nature of the medical risk can be better quantified and balanced," Justice Kennedy writes.

He noted, "The prohibition in the act would be unconstitutional, under precedents we assume to be controlling, if it subjected women to significant health risks."

Joining Kennedy in the majority were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

In a dissent, Justice Ruth Bader Ginsburg blasted the majority for using "flimsy and transparent justifications" to uphold the ban.

"Today's decision is alarming," she writes. "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."

She adds, "For the first time since Roe, the court blesses a prohibition with no exception safeguarding a woman's health."

Joining Justice Ginsburg's dissent were Justices John Paul Stevens, David Souter, and Stephen Breyer.

Some legal analysts cautioned about reading too much into the decision. "What's important here is not what the court has done. What's important is how doctors react to it," says legal historian David Garrow.

"If doctors take Justice Kennedy at his word, this will not impinge significantly on a single woman's abortion," he says.

Mr. Garrow adds, "This is not 'the sky is falling.' Hopefully professional doctors will respond to this by reaffirming their commitment to women's reproductive health, rather than running."

The federal Partial-Birth Abortion Ban Act had been struck down as unconstitutional by three federal judges and three federal appeals courts. Those decisions in New York, Nebraska, and California were based in part on what had been viewed as a constitutional requirement that abortion regulations must include an exception to protect a woman's health.

The judges also ruled that the ban created an undue burden on a woman's right to terminate her pregnancy.

The high court took up the Nebraska and California cases last fall. In reversing both decisions, the majority justices said that those challenging the law had failed to prove that it was unconstitutionally vague and that it imposed an undue burden on a woman's right to abortion.

The ruling means the law is now enforceable in all 50 states.

Abortion-rights advocates condemned the ruling. "Today's 5-to-4 decision is further proof that the confirmation of right-wing nominees to the Supreme Court has disastrous consequences for American' rights and liberties," said Ralph Neas, president of People for the American Way.

Abortion opponents viewed the ruling as a step forward.

James Bopp, general counsel of the National Right to Life Committee, said the court's decision is important because now the procedure has been banned. "Partial-birth abortion involves killing a child just inches from full delivery," he said. "One of our concerns was the right to abortion moving outside the womb now during delivery and really being an expansion of the right. The court has rejected that."

He adds that the decision will shift the focus of abortion-rights cases away from hypothetical "facial" challenges to concrete cases in which the hardship must be demonstrated and proved. "That is a very welcome development," Mr. Bopp says.

The federal Partial-Birth Abortion Ban Act was passed by Congress three years after the US Supreme Court in June 2000 struck down a similar Nebraska law banning so-called partial-birth abortions.

The high court struck the law down in part because it lacked a health exception. The 5-to-4 majority also said it created an undue burden on a woman's right to choose to terminate her pregnancy.

Congress deliberately excluded a health exception from the federal version of the law, knowing that the measure would work its way through the courts and back to the US Supreme Court. By the time it did, Justice Sandra Day O'Connor, the key fifth vote in the 2000 Nebraska case, had retired and left the court. She was replaced by Justice Alito, whose vote proved decisive on Wednesday.

– Staff writer Linda Feldmann contributed to this article.

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