Supreme Court upholds ban on partial-birth abortion

WASHINGTON -- The Supreme Court changed course on abortion Wednesday and cleared the way for states to pass laws designed to discourage women from ending their pregnancies.

WASHINGTON -- The Supreme Court changed course on abortion Wednesday and cleared the way for states to pass laws designed to discourage women from ending their pregnancies.

In a 5-4 decision, the court said the "government has a legitimate and substantial interest in preserving and promoting fetal life." The ruling upheld a national ban on a disputed midterm abortion method that critics call partial-birth abortion.

Seven years ago, the court, also by a 5-4 margin, struck down a nearly identical state law on the grounds that it could force some women to undergo riskier surgery during the fourth or fifth month of a pregnancy. But the retirement of Justice Sandra Day O'Connor in 2005 and President Bush's choice of Justice Samuel Alito tipped the balance the other way.

It was the first time the court has upheld a ban on an abortion procedure, and the first time since the landmark Roe v. Wade decision that justices approved an abortion restriction that did not contain an exception for the health of the woman. Although Wednesday's opinion stopped well short of overturning the 1973 Roe vs. Wade decision guaranteeing the basic right to abortion, the majority said it was prepared to uphold new restrictions on doctors who perform them and women who seek them.

Justice Anthony Kennedy, speaking for the court, said the government may not forbid abortion outright, but it "may use its voice and its regulatory authority" to dissuade women from ending pregnancies. The ban on partial-birth abortions will "encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions," he added.


Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas and Alito joined Kennedy's opinion. In a separate statement, Thomas and Scalia said again they would vote to overrule Roe v. Wade entirely.

The decision is likely to throw the abortion issue into the campaign for the White House. Two of the court's strongest supporters of the right to abortion are also its oldest justices: John Paul Stevens will be 87 on Friday, and Ruth Bader Ginsburg is 74. Whoever wins the 2008 presidential election might get the chance to nominate one or more new justices.

Ginsburg, the court's only woman, called Wednesday's 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.

Stevens and justices David Souter and Stephen Breyer joined her dissent.

The ruling culminates a 12-year campaign by the National Right to Life Committee to outlaw the procedure that its leaders first dubbed "partial-birth abortion." They said the procedure was akin to "infanticide" because the fetus was killed just as it emerged from the mother's body.

Abortion-rights advocates voiced outrage. "Today's ruling is a stunning assault on women's health and the expertise of doctors who care for them," said Nancy Northrup of the Center for Reproductive Rights. "This court believes that members of Congress -- not doctors -- are in the best position to make medical decisions for their patients."

In one sense, the ruling might have more symbolic than practical significance. By most estimates, the procedure is used in less than 5,000 of the more than 1.3 million abortions performed nationwide each year.


However, the legal battle turned on the old question of whether a woman and her doctor, or elected lawmakers, should decide on abortion.

Most abortions -- between 85 percent and 90 percent -- are done in the first three months of pregnancy. In those cases, the fetus is removed through a suction tube. Those are not affected by the federal law.

Later in a pregnancy, however, 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, and it remains legal.

Some doctors who perform second-term abortions said it was safer and less risky to remove the fetus intact because that method is less likely to expose the woman to injury, bleeding or infection. 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.

The D&X procedure was made a crime by Congress in the Partial Birth Abortion Ban Act of 2003. The law permits doctors to use the banned procedure if it is necessary to save the mother's life. However, there is no exception for instances where doctors say it is needed to preserve her health.

The Washington Post contributed to this report.

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