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 Warren Richey | Staff writer of The Christian Science Monitor

from the April 19, 2007 edition

Page 1 of 3

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.

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.

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