Abortion fight coming
Procedure known as partial birth abortion blocked by Supreme Court, which could set stage for broader push
That may open the door to more challenges to the "health exception," legal experts said yesterday, such as those in the many state laws requiring parental consent or notification before performing an abortion on a minor.
By just a 5-4 majority, the court yesterday overturned decisions by federal courts in New York, San Francisco and Omaha that blocked implementation of the Partial Birth Abortion Ban Act of 2003 because it was unconstitutional "on its face. " The court left open the possibility of further challenges once the law goes into effect.
The nationwide ban the court allowed yesterday concerns the procedure known to doctors as "intact dilation and extraction. " It applies only to several thousand of the roughly 1.3 million abortions performed each year, mostly in the second trimester of pregnancy.
Justice Anthony Kennedy’s majority opinion, though couched in the sober language of the law, fully described the dismemberment and the spasms of crushed fetuses.
The procedure at issue yesterday arouses particular controversy because part of the fetus is allowed to emerge from the mother before, usually, its head is crushed.
Kennedy, who voted to uphold Roe in 1991 but has expressed misgivings about this procedure, said that alternatives are available to end second-trimester pregnancies, and that medical opinion was divided over whether there are occasions when they are not sufficiently safe.
The two newest members of the court, Chief Justice John Roberts and Justice Samuel Alito, sided with Kennedy. Justices Clarence Thomas and Antonin Scalia agreed with the result but said the others should have gone further, to overturn Roe.
In a statement that drew an unusually sharp rebuke from dissenting Justice Ruth Bader Ginsburg, Kennedy said the ban is justified in part by the government’s interest in protecting a mother who regrets her decision to have an abortion and "must struggle with grief more anguished and sorrow more profound" when she learns how her "unborn child" was terminated.
Ginsburg wrote that Kennedy "invokes an antiabortion shibboleth for which [he] concededly has no reliable evidence" and strongly implied that Kennedy was guilty of sexism.
She said the court’s "alarming" 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 Gynecologists. "
The decision was denounced by many Democrats, including New York Sen. Hillary Rodham Clinton, and applauded by many Republicans, including President George W. Bush and presidential candidate Rudolph Giuliani, who supports other abortion rights. In the past, however, Giuliani has spoken in favor of allowing some so-called partial birth abortion procedures to be allowed under the law.
David Masci, who studies abortion issues for the independent Pew Research Center here, said that abortion opponents are likely to use yesterday’s decision to challenge health exceptions in other abortion laws, including those involving minors.
Yesterday’s decision does allow for an exception if the mother’s life is in danger.
Newsday Washington correspondent Tom Brune contributed to this story.
What court’s ruling means
What kind of abortions are banned under the law upheld yesterday?
A small percentage that involve pulling most of the fetus out of the uterus intact before smashing or puncturing its skull are affected. The roughly 90 percent of abortions that take place in the first trimester of pregnancy are not affected. Nor are the majority of abortions in the second trimester.
How many is that?
There are no current statistics, but estimates range from 2,000 to 5,000 times a year out of perhaps 1.3 million abortions.
Does this mean that the Supreme Court is about to overturn Roe v. Wade?
Not yet. There is still a majority of at least five justices on the court who support Roe. But it appears likely that if any of those five retires and is replaced by a conservative, the court will overturn Roe.
What if the banned procedure is necessary to save the life or preserve the health of the mother?
It is allowed if the mother’s life is at stake, but not her health.
What happens to a doctor who performs the outlawed procedure?
A doctor can be put in jail for up to 2 years unless a state medical board rules the procedure was necessary to save the mother’s life or a court decides the doctor did not intend to perform the procedure.