In a highly significant decision released Wednesday morning,
the US Supreme Court for the first time upheld a law banning
certain types of abortion. The ruling sets the stage for further
legal restrictions on abortion rights throughout the country.
It represents a further attack on democratic rights and the
separation of church and state.
Reversing previous court precedents and employing shoddy
legal reasoning, the court upheld the Partial-Birth Abortion Ban
Act of 2003. That Act, basing itself on false medical conclusions
and not including an exception for safeguarding the health of the
pregnant woman, mandates fines and jail times of up to two years
for doctors performing a type of abortion known as intact dilation
and evacuation (intact D&E) or dilation and extraction (D&X).
The procedure, which involves the partial extraction of the fetus
before it is aborted, is employed rarely and usually only under
extraordinary conditions involving the health of the mother
or deformations to the fetus.
The 5-4 vote on the court overturns the decisions of three
district courts and three appellate courts, which all found
the act unconstitutional.
The decision combined two cases before the court,
Gonzales v. Carhart and Gonzales v. Planned Parenthood.
Justice Anthony Kennedy wrote the opinion, and was joined
by Chief Justice John Roberts and Justices Samuel Alito,
Antonin Scalia and Clarence Thomas. Thomas and Scalia
added a separate opinion repeating their view that the court’s
entire previous abortion jurisprudence, including the 1973 case
of Roe v. Wade, “has no basis in the Constitution.”
A sharp dissenting opinion was written by Justice Ruth Bader Ginsburg
and was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.
In an unusual step, Ginsburg read her dissent out loud before the court.
The dissent concludes with the warning, “In candor, the Act, and the Court’s
defense of it, cannot be understood as anything other than an effort to chip
away at a right declared again and again by this Court,” the right to an abortion.
The decision is a victory for Christian conservatives, who see it as a first
step in the drive to overturn the Roe decision itself. Representative John Boehner,
Republican leader in the House of Representatives, responded by saying that
the ruling “sets the stage for further progress in the fight to ensure our nation’s
laws respect the sanctity of unborn human life.” President Bush also praised the
ruling, saying that it upholds the ability of Congress to pass laws “reflecting the
compassion and humanity of America”—
i.e., the religious prejudices of Christian fundamentalists.
The ruling follows Bush’s appointment of Chief Justice John Roberts in September 2005
and Justice Samuel Alito in January 2006, who have shifted the court significantly
to the right on a number of issues, including presidential powers, corporate regulation,
and the separation of church and state.
The Democratic Party played an important role in facilitating both nominations.
In the case of Roberts, the Senate voted overwhelmingly (78-22) to confirm the nomination,
while in the case of Alito, Democrats refused to mount a serious filibuster attempt, even
though this was at the time the only way the nomination could be blocked.
The Senate voted 72-25 to close debate on Alito’s nomination.
