Federal Abortion Ban: War of Words

“Today's decision is alarming.  It refuses to take Casey and Stenberg seriously.  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 (ACOG).  It blurs the line, firmly drawn in Casey, between previability and postviability abortions.  And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.”

“Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.”

“The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a woman's health."

"Notably, the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life.  By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent."

"Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety."

"Instead of drawing the line at viability, the Court refers to Congress' purpose to differentiate 'abortion and infanticide' based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed."

"In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational.  The Court's defense of the statute provides no saving explanation.  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 — and with increasing comprehension of its centrality to women's lives."

The majority opinion was written by Justice Anthony Kennedy, who said:

"The government may use its voice and its regulatory authority to show its profound respect for the life within the woman."

"Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.  The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life."

"The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned."

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child.  The Act recognizes this reality as well.  Whether to have an abortion requires a difficult and painful moral decision."

"While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."

"It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State."

"The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know:  that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

"It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.  The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand."

"The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion."

"It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, 'undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.'"

"In sum, we reject the contention that the congressional purpose of the Act was 'to place a substantial obstacle in the path of a woman seeking an abortion.'"

"This traditional rule is consistent with Casey, which confirms the State's interest in promoting respect for human life at all stages in the pregnancy.  Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures.  The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community."

There were no surprises from Justice Clarence Thomas who, joined by Justice Antonin Scalia, concurred with the majority and wrote:

“I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113 (1973), has no basis in the Constitution."